IN THE CASE OF:	Mr. 

      BOARD DATE:	18 December 2013

      CASE NUMBER:  	AR20130009987
___________________________________________________________________________

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 his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he enlisted at 18 years old and his first duty station was Korea.  He got in trouble for drinking.  When he was assigned to Ft Hood, his sergeant kept telling him to just get out of the military. He agreed not realizing he would receive a general discharge.  He served his country over two years and nine months and would like an upgrade.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	20 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	18 March 2008
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	Btry E, 2nd Bn, 1st ADA, 41st Fires Bde, Fort Hood, 
			TX
	f.	Current Enlistment Date/Term:	26 October 2005, 3 years, 26 weeks
	g.	Current Enlistment Service:	2 years, 3 months, 29 days
	h.	Total Service:	2 years, 3 months, 29 days
	i.	Time Lost:	25 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	63B10, Wheeled Vehicle Mechanic
	m.	GT Score:	98
	n.	Education:	GED
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; KDSM; ASR
	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 26 October 2005, for a period of 3 years and 26 weeks.  He was 17 years old at the time of and had a high school equivalency (GED).  He served in Korea.  His record documents no acts of valor or significant achievement.  He completed 2 years, 3 months, and 29 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 3 March 2008, 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 receiving two field grade Article 15 punishments for drinking under the legal age of 21 years, and a summary court-martial (071016) for the following offenses:  

a. failing to obey a lawful general order; 
b. resisting apprehension; 
c. making a false official statement; and 
d. being drunk and disorderly.

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 4 March 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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.  On 10 March 2008, 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 18 March 2008, 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 record shows he was confined in military confinement facility from 16 October 2007, as a result of a summary court-martial sentence of confinement for 14 days on 16 October 2007.  However, the record further shows additional loss days through 9 November 2007, but no record indicating the applicant’s status during the period from 30 October 2007 through 9 November 2007. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Summary Court-Martial Results of Trial, dated 16 October 2007, indicates the applicant was found guilty of 4 charges: failing to obey a lawful general order; resisting apprehension; making a false official statement; and being drunk and disorderly.  The applicant was sentenced to confinement for 14 days and forfeiture of $675 for one month.

2.  Article 15, dated 13 June 2007, violating a lawful general order, by wrongfully consuming alcohol while underage (070505).  The punishment consisted of reduction to the grade of E-1, and 45 days of extra duty and restriction, (FG). 

3.  Article 15, dated 5 January 2006, violating a lawful general order, by wrongfully consuming alcohol while underage (061117).  The punishment consisted of reduction to the grade of E-1, forfeiture of $640 per month for two months, 45 days of extra duty and restriction, and oral reprimand, (FG). 

4.  Three negative counseling statements, dated between 20 December 2006 and 25 January 2008, for being arrested for underage drinking and processed for separation.
      
5.  An MP Report, dated 5 May 2007, that indicates the applicant was the subject of an investigation for failing to obey a general order and underage drinking.

6.  An MP Report, dated 4 August 2007, that indicates the applicant was the subject of an investigation for failing to obey a general order and underage drinking, and resisting apprehension.   

7.  Memorandum for battalion commander, dated 11 June 2007, rendered by the applicant’s defense counsel, subject: Memorandum in Support of the applicant, provides a background of the applicant’s charge for drinking while underage and two Article 15 actions. 

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, 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.  The applicant by violating the Army's policy not to abuse alcohol, 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 abusing alcohol and by the pattern of misconduct, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Article 15 actions and a summary court-martial action for multiple violations of the Uniform Code of Military Justice, and 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 that he was 18 years old and got in trouble for drinking, perhaps to show that he was young and immature at the time of the discharge.  However, the record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant contends he agreed to being separated, but did not realize his service would be characterized as general, under honorable conditions.  However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.  Moreover, the counseling record indicates he was advised that a discharge under Chapter 14 with an under other than honorable conditions is normally appropriate for a Soldier under this chapter, but that the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Accordingly, this contention is without merit toward a consideration for an upgrade.

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:  18 December 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  yes [redacted]

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)		AR20130009987

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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