IN THE CASE OF:  	Mr. 

      BOARD DATE:  	19 February 2014

      CASE NUMBER:  	AR20130010039
___________________________________________________________________________

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 an upgrade of his discharge characterization from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that in September 2009, he began a series of ankle surgeries.  Dues to heavy medication, he was late for formation three times and this was deemed a pattern of misconduct.  All of his medical evidence was ignored and he was chaptered out for this.  Also, due to his medical status, he was unable to deploy and his command was chaptering out all injured in the line of duty.  His discharge was unjust because his time in service was honorable and he deserves to receive his medical benefits.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		28 May 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			24 August 2010
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14, paragraph 14-12b, 					JKA, RE-3
e. Unit of assignment:			Home Detachment, 1st Battalion, 64th Armor 							Regiment, 2nd Brigade Combat Team, 3rd Infantry 						Division (Rear) (Provisional), Fort Stewart, GA
f. Current Enlistment Date/Term:	19 November 2007, 3 years
g. Current Enlistment Service:	2 years, 9 months, 6 days
h. Total Service:			3 years, 9 months, 28 days
i. Time Lost:				None
j. Previous Discharges:		ARNG (061027-070123), NA 									IADT (070124-070511), HD									ARNG (070512-071118), NA
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	11C10, Indirect Fire Infantryman 
m. GT Score:				111
n. Education:				GED
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, KDSM, 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's record shows he enlisted in the ARNG on 27 October 2006, for a period of 8 years.  He was 33 years old at the time and had a GED.  He joined the Regular Army on 19 November 2007.  When his discharge proceeding were initiated he was serving at the Fort Stewart, GA.  He served for a total of 3 years, 9 months and 28 days.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

	a.  Failing to report to his appointed place of duty on five occasions (090511, 091117, 091118, 100223, and 100308), for which he received an Article 15.

	b.  Possessing and manufacturing counterfeit currency.

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

3.  On 28 July 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf (NIF).  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 of a general, under honorable conditions discharge.  

4.  On 3 August 2010, 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 separated on 24 August 2010, under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, dated 28 April 2010, for five specifications of failing to report to his designated place of duty.  His punishment consisted of a reduction to E-2, forfeiture of pay in the amount of $811.00 pay for one month (suspended), and 15 days of extra duty and restriction. 

2.  There are numerous negative counseling statements dated between 11 May 2009 and 
8 March 2010, for violating uniform policy, failing to report, concerning a drinking problem, notifying Soldier of chapter process, admitting to a SGT that he has possessed and manufactured counterfeit currency, and receiving an Article 15.



3.  A CID Investigation Report, dated 30 October 2009, stating the applicant was pointing a hand gun at people in his barrack’s room and also possessing counterfeit money.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293 and DD Form 214.

POST-SERVICE ACTIVITY: 

None were provided with the application.

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 his military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge.  

2.  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 repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice and several negative counseling statements.

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

4.  The applicant contends he had several ankle surgeries and took heavy medication.  This caused him to be late for formation three times.  This was deemed a pattern of misconduct, all of his medical evidence was ignored and he was chaptered out for this.  Also, due to his medical status, he was unable to deploy and his command was chaptering out all injured in the line of duty.  A review of the applicant’s record shows numerous counseling statements for violating uniform policy, failing to report, having drinking problem, and admitting to a SGT that he has possessed and manufactured counterfeit currency.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  In fact, the applicant’s Article 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

5.  The applicant contends his discharge was unjust because his time in service was honorable and he deserves to receive his educational benefits.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant contends that he would like to be eligible to use his GI Bill to pursue and further his education.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

7.  The record contains no evidence of arbitrary or capricious actions by the applicant’s command, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

8.  Records show the proper discharge and separation authority procedures were followed in this case.

9.  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:  19 February 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)		AR20130010039



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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