IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 February 2014

      CASE NUMBER:  	AR20130010683
___________________________________________________________________________

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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, the reason for his discharge was due to a court case in EL Paso, TX.  He was accused of a felony and was discharge before the trial date.  The date of his discharge was on 20 December 2012 and his trial was on 25 January 2013.  The court found him not guilty, acquitted him, and expunged all charges from his record.  Since his acquittal, he has held a steady job in his home state and has not been in any trouble.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		31 May 2013
b. Discharge received:			Under Other Than Honorable Conditions
c. Date of Discharge:			20 December 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-4
e. Unit of assignment:			Ist AR STB HHC, Fort Bliss, TX
f. Current Enlistment Date/Term:	14 September 2009, 5 years  		
g. Current Enlistment Service:	3 years, 3 months, 7 days
h. Total Service:			3 years, 3 months, 7 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-4
l.  Military Occupational Specialty:	31B10, Military Police
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			No
p. Combat Service:			None
q. Decorations/Awards:		GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the US Army on 14 September 2009, for a period of 5 years.  He was 19 years old at the time of entry and was a high school graduate.  His record contains no evidence of acts of valor or significant achievements.  The applicant was serving at Fort Bliss, TX when his discharge proceedings were initiated.




SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c, for misconduct (serious offense), with a characterization of service of under other than honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 4.  

3.  The applicant’s record contains no evidence of time lost or any action under the Uniform Code of Military Justice (UCMJ).

4.  The applicant was separated under Orders 352-0084, HQS, 1st Armored Division, Fort Bliss, TX, with an effective date of 20 December 2012.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

There are no counseling statements or UCMJ actions in the record.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293, DD Form 214, and a copy of a court docket from the 188th Judicial District Court, EL Paso, TX.

POST-SERVICE ACTIVITY: 

The applicant contends he is working a steady job.

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 applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the presumption of government regularity prevails in the discharge process of this case.

3.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of under other than honorable conditions.  Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contention that he was discharge for an alleged crime that he was found innocent was carefully considered.  However, it is not possible to determine if his contentions has merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the applicant to provide the appropriate documents or other evidence (i.e. discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet this burden of proof since the evidence is not available in the official record.

5.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief. 




SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  7 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)		AR20130010683



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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