IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 January 2014

      CASE NUMBER:  	AR20130011994
___________________________________________________________________________

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 under other than honorable conditions discharge to honorable.

2.  The applicant states, in effect, he believes his discharge was unjust because he was not properly guided by his NCOs.  He contends he was fully dedicated to the military and earned multiple awards for his service and served in Kuwait.  He states he was the victim of predatory lending practices and did not receive the help he needed from his chain of command.  His acting First Sergeant (1SG) used his position to harass and get even with him.  He was young and naïve.  He is requesting the upgrade so he can use the medical benefits he earned through his years of service.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			20 June 2012
b. Discharge Received:			Under Other Than Honorable
c. Date of Discharge:				4 June 1999
d. Reason/Authority/SPD/RE Code:		Misconduct, AR 635-200, Chapter 14-12b,
JKA, RE-3
e. Unit of assignment:				Headquarters Company, 3rd Brigade, 1st
Cavalry Division, Fort Hood, TX
f. Current Enlistment Date/Term:		3 December 1996/4 years
g. Current Enlistment Service:		2 years, 2 months, 6 days
h. Total Service:				2 years, 6 months, 2 days
i. Time Lost:					None
j. Previous Discharges:			RA, (941004-940128) UNC
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		19K10, M1 Armor Crewmember
m. GT Score:					98
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM AFEM, ASR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No




SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 3 December 1996 for a period of 4 years.  He was 23 years old at the time of entry and a high school graduate.  His record is void of any significant acts of valor or achievement.  He completed 2 years, 6 months and 2 days of active military service.  When his discharge proceedings were initiated, he was serving at Fort Hood, Texas.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 23 April 1999, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, a pattern of misconduct. Specifically for numerous failure to report incidents, false official statement, lying to an NCO, disobeying a lawful order, failure to pay just debts, and being absent without leave (AWOL).

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.

3.  On 23 April 1999, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf; waived his right to an administrative separation board and requested to be separated with an under other than honorable conditions discharge.  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 an under other than honorable conditions discharge.  

4.  On 19 May 1999, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated on 4 June 1999, under Army Regulation 635-200, Chapter 14-12b, with a under other than honorable conditions discharge, an SPD code of JKA, and an RE code of 3.     

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  The applicant was notified of AWOL, however, the record does not reflect any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 17 December 1998, failure to go at the time prescribed to his appointed place of duty on 9 November 1998 and making a false official statement to 1SG B on 
10 November 1998.  The punishment consisted of reduction to the grade of E-3, forfeiture of $463 pay, 14 days of extra duty and 14 days restriction (suspended), to be automatically remitted if not vacated before 17 February 1999 (CG). 


2.  Article 15, dated 18 February 1999, failure to go at the time prescribed to his appointed place of duty on 6 February 1999.  The punishment consisted of reduction to the grade of E-2, extra duty for 14 days (CG).
      
3.  Multiple counseling statements for false official statement, failure to obey an order by the commander, failure to report to extra duty, failing to pay a debt, missing movement, for being disrespectful to a non-commissioned officer and for being AWOL.

      
EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided a DD Form 149 with a self-authored statement, dated 14 June 2013, two DD Forms 214, NA Form 13038 dated 10 December 2012, DD Form 4/1 and 4/2, dated
3 December 1996, DA Form 2-1, dated 9 December 1996, a membership certificate from Abundant Living Faith Center, dated 18 May 2008, a letter from the State of New Mexico Corrections Department, dated 16 June 2000, a printout from About.com US military, military separation codes, printed 13 June 2013 and a letter from the National Personnel Records Center, dated 12 December 2012.

2.  The applicant provided six letters in support of his application.  The letters from Ms. C, Ms. R, Ms. M, and Mr. and Mrs. S, stated the applicant is a responsible person dedicated to helping others.  The remaining two letters were from 1SG B and SSG N, dated 9 April and 
12 April 1999.  They described the applicant as a team player with a “can do” attitude.

POST-SERVICE ACTIVITY: 

The applicant states he is married with four children and has not had any financial problems.  He founded a non-profit organization for fathers facing custody issues. 

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 of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by two Articles 15 and five 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 his discharge was unjust because he was not properly guided by the NCOs in his unit.  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 unjustly discriminated.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  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 that an upgrade of his discharge would allow for medical benefits he should have been entitled to through his years of service.  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.

6.  The records show the proper discharge and separation authority procedures were followed in this case.  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:  17 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)		AR20130011994



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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