IN THE CASE OF:	Mr. 

      BOARD DATE:	24 January 2014

      CASE NUMBER:	AR20130009979
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests to upgrade the characterization of his service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, his discharge was inequitable because it was based on one isolated incident in 63 months of service with no other adverse action.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	23 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	22 October 2004
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12b, JKA, 
			RE-3
	e.	Unit of assignment:	HHC, 5th Engr Bn, 7th Corps Support Group, 
			Bamberg, Germany 
	f.	Current Enlistment Date/Term:	19 July 2002, 3 years
	g.	Current Enlistment Service:	2 years, 3 months, 4 days
	h.	Total Service:	5 years, 3 months, 1 day
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (990722-020718) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	62B10, Construction Equipment Repairer
	m.	GT Score:	93
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Iraq (030212-031210)
	q.	Decorations/Awards:	AAM; AGCM; NDSM; GWOTEM; GWOTSM; ASR; 
			OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 22 July 1999, and reenlisted on 19 July 2002, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  He served in Germany and Iraq.  He earned an AAM.  He completed 5 years, 3 months, and 1 day of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 28 September 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct, specifically for driving while impaired, disrespecting a noncommissioned officer, disorderly conduct, and receiving a summarized Article 15 (020717) for disorderly conduct.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 1 October 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not elect whether he was submitting a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  In an undated memorandum, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 22 October 2004, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Summarized Article 15, dated 17 July 2002, for wrongfully destroying private property (020523), being drunk and disorderly (020523).  The punishment consisted of 4 days of extra duty, (CG). 

2.  Ten negative counseling statements, dated between 7 May 2001 and 16 June 2004, for unsatisfactory performance; disrespecting an NCO; driving while impaired; failing to go to his appointed place of duty; being insubordinate towards an NCO; failing to obey order or regulation; enrollment in counseling for alcohol evaluation; suspension of favorable actions for failing APFT; and not being recommended for promotion due to being enrolled in counseling for substance abuse treatment, and not having an updated weapons qualification and APFT.

3.  USAREUR Registry of Motor Vehicle Initial Report – Commander’s Action Required, with its associated documents, dated 17 May 2004, reported the applicant as the subject of a traffic offense (040516).

4.  Memorandum, dated 17 May 2004, subject: Revocation of Privileges, regarding the applicant is self-explanatory.

5.  DD Form 2708, Receipt for Inmate or Detained Person, 16 May 2004, indicates the applicant was detained/released for driving while mentally impaired.

6.  Memorandum, dated 17 May 2004, subject: Release of Jurisdiction by German Judicial Authorities, regarding the applicant is self-explanatory.

7.  Rehabilitation Team Meeting form, dated 9 December 2002, indicates the applicant’s enrollment in ADAPT or community counseling center.

8.  Letter of Reprimand, dated 12 November 2002, reprimanded the applicant for being involved in a physical alternation with another enlisted Soldier (020831).

9.  DA Form 4833, Commander’s Report Disciplinary or administrative action, dated 28 October 2002, indicates the applicant being identified for assault consummated by a battery (020831).

10.  An MP Report, dated 3 September 2002, indicates the applicant was the subject of an investigation for assault consummated by a battery off post. 

11.  E-mail correspondence with an MP blotter, dated 25 June 2002 and 23 May 2002, respectively, indicates the applicant was the subject of an investigation for drunk and disorderly, and damage to private property.  DD Form 629, Receipt for Prisoner or Detained Person, 23 May 2002, for the same offense was also attached.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the pattern of misconduct and by violating the Army's policy not to abuse alcohol, the incidents of misconduct compromised the special trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's alcohol abuse policies.  By the pattern of misconduct and abusing alcohol, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice and numerous negative counseling statements. 

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the incident that caused his discharge was the only one in his entire Army career, perhaps referring to his summarized Article 15.  However, the record contains documentary evidence of numerous incidents of misconduct, reflecting the pattern of misconduct, the applicant’s unit commander made reference to during the initiation of the applicant’s separation proceedings.  Accordingly, the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by even a single incident provides the basis for a characterization.  The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.

5.  The unit commander’s notification memorandum, 28 September 2004, contained offenses the applicant committed in a prior period of service.  Specifically, the aforementioned summarized Article 15, the applicant received on 17 July 2002.  The government’s presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct was not considered for the purpose of characterization.  Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant’s characterization of service.  However, the applicant’s period of service under consideration was marred by numerous negative counseling statements, memorandum of reprimand, and documented incidents of misconduct either by memoranda or official records used for reporting the incidents of misconduct, such as military police reports.  Therefore, even if the separation authority considered incidents from an earlier period of service in determining the characterization for the period under consideration, it was harmless error.  

6.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

7.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  29 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA



















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR20130009979

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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