IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 February 2014

      CASE NUMBER:  	AR20130010662
___________________________________________________________________________

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 fully honorable.

2.  The applicant states, in effect, that his discharge was inequitable because at the time of his problems he was not provided with rehabilitation counseling.  His unit only enrolled him in ASAP once his chapter begun.  He was requesting help because he did not want to be chaptered out.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		31 May 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			9 July 2001
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			3rd Sqdn, 3rd ACR, Fort Carson, CO  
f. Current Enlistment Date/Term:	6 August 1998, 4 years
g. Current Enlistment Service:	2 years, 11 months, 4 days
h. Total Service:			2 years, 11 months, 4 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	77F10, Petroleum Supply Specialist
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ASR
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 Regular Army on 6 August 1998 for a period of 4 years.  He was 18 years old at the time and a high school graduate.   The applicant’s record does not show any significant achievements or acts of valor.  When his discharge proceedings were initiated, he was serving at Fort Carson, CO.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 11 June 2001, 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 be at his appointed place of duty (010529, 010330, and 001024).
	b.  Failing to obey a lawful order from a NCO (010524).
	c.  wrongfully using a controlled substance, to wit: marijuana (on or about 001127). 

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 7 June 2001, the applicant requested 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.  Of note, it appears the applicant consulted with legal counseled prior to being notified by the unit commander.

4.  On 13 June 2001, 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 9 July 2001, under the provisions of Army Regulation 635-200, Chapter 14-12b for a 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.  Article 15 dated, 5 January 2001, for wrongfully using marijuana (between 001027 and 001127).  His punishment consisted of reduction to E-1, forfeiture of pay in the amount of $502.00 pay per month for two months, 45 days of extra duty and restriction (FG)

2.  Numerous negative counseling statements covering the period 30 November 1999 to 29 May 2001, for bouncing checks, having a poor attitude, failing to report, failing to obey orders, and wrongfully using of marijuana.

3.  The record also contains a positive urinalysis coded as US (Unit Sweep), dated 
27 November 2000, that was positive for marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 293 and a 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 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 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 his discharge was inequitable because at the time of his problems he was not provided with rehabilitation counseling.  His unit only enrolled him in ASAP once his chapter begun.  AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  

5.  The applicant contends he was requesting help because he did not want to be chaptered out.  However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling.  The applicant failed to respond appropriately to these efforts.

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.  

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

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:  12 February 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

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)		AR20130010662



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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