IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 January 2014

      CASE NUMBER:  	AR20130010461
___________________________________________________________________________

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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, he would like an upgrade of his discharge for the purpose of being able to use his GI Bill benefits to go to school to become a pharmacist.  He contends he was mistreated by certain members of his command.  He served 14 months in Iraq and believes his discharge should be upgraded.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 June 2013
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			23 March 2010
d. Reason/Authority/SPD/RE:		Misconduct (AWOL), AR 635-200, paragraph 							14-12c(1), JKD, RE-3
e. Unit of assignment:			D Co, 1st EN Bn, 1st HBCT, Fort Riley, KS
f. Current Enlistment Date/Term:  	1 November 2005, 5 years and 28 weeks
g. Current Enlistment Service:  	4 years, 7 days
h. Total Service:			4 years, 7 days
i. Time Lost:				140 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92W10, Water Treatment Specialist
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (061003-071205)
q. Decorations/Awards:		ARCOM, AGCM, ICM-w/CS, NDSM, ASR, OSR, 						MUC
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 1 November 2005, for a period of 5 years and 28 weeks.  He was 17 years old at the time and a high school graduate.  His record indicates he served a tour of duty in Iraq, achieved the rank of SPC/E-4 and earned several awards to include the ARCOM, AGCM, and MUC.  He completed 4 years and 7 days of total active military service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 5 March 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense) for going AWOL x 3 (090619-090716, 090717-090805, and 090811-091105) and failure to report to his appointed place of duty on several occasions.

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 9 March 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 15 March 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 discharged from the Army on 23 March 2010, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c(1), AR 635-200, for misconduct (AWOL), with a Separation Program Designator code (SPD) of JKD and an RE code of 3. 

6.  The applicant's record of service indicates 53 days of time lost; 3 days for being AWOL      22 September 2006 until his return on 25 September 2006; 5 days for being AWOL 27 March 2009 until his return on 1 April 2009; 27 days for being AWOL 19 June 2009 until his return on 16 July 2009; 18 days for being AWOL 17 July 2009 until his return on 5 August 2009; and     86 days for being AWOL 11 August 2009 until his return on 5 November 2009.  The applicant's record also indicates 1 other day of time lost 20 April 2009 to 20 April 2009, reason is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 28 April 2009, for going AWOL (090327-090401).  The punishment consisted of reduction to the grade of E-3, forfeiture of $434.00 pay, extra duty for 14 days, restriction for 14 days (suspended), and an oral reprimand, (FG).  After consideration of all matters presented in an appeal the extra duty restriction for 14 days was deleted from the punishment.

2.  The applicant's disciplinary record includes a summary court-martial, dated 11 January 2010, for being AWOL x 3 (090619-090716, 090717-090805, and 090811-091105).  His punishment consisted of reduction to E-1, forfeiture of $964.00 pay per month for one month, and extra duty for 45 days.

3.  Several negative counseling statements dated between 25 September 2006 and               19 January 2010 for going AWOL, failing to obey order or regulations, failing to be at his appointed place of duty, driving with expired license plates, lack of Army values, disobeying a superior commissioned officer, and negligence to military quarters and equipment by leaving his room unsecured.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online applicant.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his summary court-martial, Article 15 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 had good service which included a 14 month deployment to Iraq.  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.

5.  The applicant also contends he was mistreated by members of his command.  However, 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 mistreated by his command.  The applicant’s statements alone does 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.   

6.  The applicant expressed that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  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 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

8.  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:  27 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)		AR20130010461



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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