IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 February 2014

      CASE NUMBER:  	AR20130011381
___________________________________________________________________________

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 there are two AWOLs on his DD Form 214.  He was never AWOL; however, he was cited for DUI, underage drinking, received a court-martial and he was sentence to a military confinement.  If he was not sexually assaulted by his supervisor, he would still be in the Army.  He did not get discharged because of the Article 15 or the court-martial.  He is requesting a second chance to serve his country.  He joined the Army at the age of 17 and made a mistake of receiving the DUI.  He fulfilled the punishment that was imposed against him.    

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 June 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			21 April 2008
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14, paragraph 14-12b, 					JKA, RE-3
e. Unit of assignment:			A Battery, 1st Battalion, 7th Field Artillery, Fort Riley, 						KS
f. Current Enlistment Date/Term:	18 October 2006, 3 years, 19 weeks
g. Current Enlistment Service:	1 year, 1 month, 2 days
h. Total Service:			1 year, 1 month, 2 days
i. Time Lost:				153 days (071101-080402)
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	13B10, Canon Crewmember
m. GT Score:				101
n. Education:				GED
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, 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 18 October 2006, for a period of 3 years and 19 weeks.  He was 17 years old at the time and had a GED.  When his discharge proceedings were initiated he was serving at Fort Riley, KS.  He served a little more than a year of a three year, 19 week enlistment and his record documents no acts of valor or significant achievement.  
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 17 September 2008, 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.  Receiving a summary court-martial and having been punished for his misconduct 
	b.  AWOL
	c.  DUI
	d.  Consuming alcoholic liquor while under 21 years of age and 
	d.  Failing to report to his appointed place of duty on numerous 

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 17 April 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his 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 of a general, under honorable conditions discharge.  

4.  On 17 April 2008, 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 21 April 2008, 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 shows two periods of lost time (071101-071126, military confinement and 071127-080402, AWOL).  The mode of return from the AWOL is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, dated 31 July 2007, for DUI and unlawfully consuming alcoholic liquor while under 21 years of age on 29 June 2007.  His punishment consisted of a reduction to E-1, forfeiture of pay in the amount of $650.00 for two months, and 45 days of extra duty and restriction. 

2.  Numerous negative counseling statements covering the dated between 29 June 2007 and 30 October 2007, for breaking restriction, underage drinking, failing to report, and driving with an expired registration.  

3.  Two Military Police Reports, dated 29 June 2007 and 17 August 2007, for underage drinking.

4.  A summary court-martial, dated 1 November 2007, for underage drinking (070817) and breaking restriction (070817).  The punishment imposed consisted of a forfeiture of $650.00; and confinement for 30 days.

EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.

POST-SERVICE ACTIVITY: 

None 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 that his DD Form 214 shows two periods of AWOL.  He never went AWOL.  A review of the DD Form 214, in block 29, show two periods of lost time (071101-071126 (military confinement) and 071127-080402, AWOL).  The period of the military confinement is supported by the summary court-martial information and a DA Form 4187, dated 2 November 2007.  The period of AWOL is supported by two DA Forms 4187, dated 27 November 2007 and 8 April 2008.  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.  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 if he was not sexually assaulted by his supervisor, he would still be in the Army.  A review of the case separation documents does not support the applicant’s contention.  The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

6.  The applicant contends that he was 17 years old and made a mistake by receiving the DUI. The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

7.  The applicant contends he did not get discharged because of the Article 15 or the court-martial.  A review of the commander’s notification memorandum shows the applicant was discharged for receiving a summary court-martial, AWOL, DUI, consuming alcoholic liquor while under 21 years of age and failing to report to his appointed place of duty on numerous 
occasions; therefore, the applicant’s contentions lack merit.

8.  The applicant desires to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There is no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

9.  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.  

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

11.  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:  28 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)		AR20130011381



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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