IN THE CASE OF:	Mr. 

      BOARD DATE:  	21 March 2014

      CASE NUMBER:  	AR20130010922
___________________________________________________________________________

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

2.  The applicant states, in effect, his request is based on improper separation procedures under chapter 14, paragraph 14-12b.  He believes he was treated unfairly.  His commander failed to ensure he received adequate counseling and rehabilitation.  He was falsely accused of making false official statements when he understands that official statements are those that are written on paper.  The false official statement charge was dropped (noted in the Article 15 proceedings, dated 4 October 2011) and should not be used against him for the discharge process.  He made numerous attempts for a rehabilitative transfer and written letters to his commanders explaining his situation so that he would not be involuntarily separated.  An NCO indicated in his recommendation that he felt the actions against him (the applicant) to be unjust.  The applicant concludes, since his discharge he has been using unemployment to pay for his school where he is earning straight “A” grades.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	7 June 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	26 June 2012
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	E Btry, 4th Bn (AMD), 55th ADA Regiment, 69th 
			ADA Bde, Fort Hood, TX
	f.	Current Enlistment Date/Term:	10 February 2010, 3 years, 23 weeks
	g.	Current Enlistment Service:	2 years, 4 months, 17 days
	h.	Total Service:	2 years, 4 months, 17 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	14T10, Patriot Launching Station Enhanced 
			Operator/Maintainer
	m.	GT Score:	94
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; ASR
	r.	Administrative Separation Board:	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 10 February 2010, for a period of 3 years and 23 weeks.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 14T10, Patriot Launching Station Enhanced Operator/Maintainer.  His record documents no acts of valor or significant achievement.  He completed 2 years, 4 months, and 17 days of active duty service.

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 digitally authenticated by the applicant’s signature.  He was discharged as a PVT/E-1.  However, the applicant was able to provide a significant portion of his separation packet; therefore, the facts and circumstances surrounding his discharge are explained below, in the evidence submitted by the applicant.

2.  On 28 August 2007, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

3.  The applicant was discharged from the Army on 26 June 2012, 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. 

4.  The applicant’s available service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The applicant’s DD Form 214 and discharge orders for service under current review.

2.  Memorandum, dated 8 June 2012, subject: Separation Under AR 635-200, Chapter 14-12b, A Pattern of Misconduct [the applicant], indicates, in pertinent part, the separation authority’s decision to separate the applicant with a general, under honorable conditions; that the applicant would not be transferred to the IRR; and waived the rehabilitative requirements of AR 635-200, paragraph 1-16 as a transfer would serve no useful purpose or produce a quality Soldier. 

3.  There are no counseling statements or UCMJ actions in the record.  However, he was discharged as a PVT/E-1 and the action that reduced him in rank is not available in his record.



EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided a self-authored statement; extract copies of chapter 14, AR 635-200 and highlighted paragraphs 14-2a and d; a separate self-authored statement that precedes the following:

	a.	Notification and acknowledgment of receipt memoranda, dated 31 May 2012, which indicates, in pertinent part, that on 31 May 2012, 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 making a false official statements to an NCO on three separate occasions (110915, 110919, and 120228).  Based on the cited misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  The applicant acknowledged receiving his separation notice.

	b.	Memorandum, dated 1 June 2012, subject: Election of Rights Regarding Separation Under AR635-200, Chapter 14-12b, A Pattern of Misconduct [the applicant], indicates, in pertinent part, that on 1 June 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit a statement on his own behalf.  

	c.	Three subsequent drafted memoranda that forwarded the unit commander’s recommendation, followed by incomplete copies of the battalion commander’s recommendation and the separation authority’s decision.

	d.	Three negative counseling statements, dated between 19 September 2011 and 12 July 2012, for being notified of separation under chapter 14-12b due to patterns of misconduct; failing to be at his appointed place of duty; and lying to an NCO.

	e.	Article 15, dated 4 October 2011, for failing to go to his appointed place of duty (110711) and making a false official statement (110915) (however, that offense was lined out).  The punishment consisted of reduction to the grade of E-2, forfeiture of $383.00, 15 days of extra duty and restriction, and an oral reprimand, (CG).

2.  The applicant also provided the following additional evidence with self-authored statements: two memoranda for record, dated 5 June 2012, rendered by the applicant, and 4 June 2012, render by SSG B in support of the applicant; and an Academic Advising Report, dated 21 May 2013.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since his discharge, he has been using unemployment pay for his school and references the academic advising report. 


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 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 pattern of misconduct, the applicant 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 for 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 the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge was unjust because his discharge was based on improper separation procedures and the false official statement charge that was dropped during the proceedings of an Article 15 should not have been used as basis for his separation.  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 sufficient evidence to support the contention that he may have been unjustly discriminated.  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.  Although the dismissed charge of making a false official statement is included with two other false official statements made by the applicant as basis for his discharge; notwithstanding this error, it appears that the rights of the applicant were not prejudiced by the error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error. The applicant had two other incidents of making false official statements noted as basis for his discharge.  Therefore, it is determined the contested inclusion of the specific false official statement evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.

6.  Furthermore, the rationale the applicant provided as the basis for what he understands making a false official statement to be is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.  The UCMJ defines Article 107, false official statements and in effect, stipulates any person subject to the UCMJ, “who, with intent to deceive, signs any false record, return, regulation, order, or other official documents, knowing it to be false, or makes another any other false official statement know it to be false, ….”  

7.  The applicant contends he did not receive adequate counseling and rehabilitation, perhaps referring to a rehabilitative transfer.  However, 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.  Further, the evidence shows the separation authority waived the rehabilitative requirements of AR 635-200, paragraph 1-16, and indicated that a transfer would serve no useful purpose or produce a quality Soldier.  Moreover, the evidence further shows that before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation.  The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

8. The third party statement provided with the application speaks highly of the applicant’s performance.  However, the person providing the character reference or supporting statement was not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, the statement does not provide any evidence sufficiently compelling to overcome the presumption of government regularity. 

9.  The applicant contends he will not be able to continue with his school, if not for the unemployment benefits, perhaps indicating 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.  Furthermore, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  

10.  The available 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 available records show the proper discharge and separation authority procedures were followed in this case.  

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



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  21 March 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)		AR20130010922

Page 8 of 8 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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