IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 February 2014

      CASE NUMBER:  	AR20130012232
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, he received a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence and he believes his discharge is unjust because his separation was based on the same misconduct.  He contends his service record does not reflect a pattern of misconduct and was due to a single isolated incident within his 16 years of faithful, loyal service.  He states his discharge should be upgraded because of his service which includes three combat tours and received a Bronze Star Medal (BSM), attendance at Ranger School, an advanced land navigation course, a joint weapons intelligence course, all while suffering from a medical condition.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 July 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				16 December 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200,
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				C Company, Warrior Transition Battalion,
Womack Army Medical Center, Fort Bragg, NC
f. Current Enlistment Date/Term:		17 October 2007/Indefinite
g. Current Enlistment Service:		4 years, 2 months
h. Total Service:				17 years, 4 months, 15 days
i. Time Lost:					None
j. Previous Discharges:			DEP, 940802-950712, NA
RA, 950713-981210, HD
RA, 981211-071016, HD
k. Highest Grade Achieved:			E-7
l. Military Occupational Specialty:		11B4P, Infantryman
m. GT Score:					112
n. Education:					Some college
o. Overseas Service:				Italy, SWA
p. Combat Service:				Iraq, (030813-040320)
Afghanistan, (020708-030115) and
(070113-071212) 
q. Decorations/Awards:			BSM, ARCOM-2, VUA, AGCM-4, NDSM,
ACM-2CS, GWOTSM, HSM, ICM-CS, NPDR-2, OSR-2, NATO MDL, MFOM, CIB, EIB
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 13 July 1995 for a period of 4 years and 17 weeks.  On He was 20 years old at the time of entry and a high school graduate.  He served in Iraq and Afghanistan.  On 17 October 2007, he reenlisted in the Army for an indefinite period of time.  He earned a BSM and two ARCOMs.  He completed 17 years, 4 months, and 15 days of active duty service.  His DD Form 214, block 12c does not account for his delayed entry program time.  When his discharge proceedings were initiated, he was serving at Fort Bragg, North Carolina.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 19 August 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for:

     a.  Disobeying a direct order on four occasions.

     b.  Failure to report on five occasions.

     c.  Disorderly conduct on two occasions.

     d.  Civil convictions to include civil revocation of his driver’s license, driving while impaired, reckless driving to endanger, intoxicated and disruptive, harassing phone call, assault on a government official/employee, and a hit and run/leaving the scene.

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

3.  On 19 August 2011, the applicant refused to sign the election of rights form.  The election to not waive his right to legal counsel and not to waive his right to an administrative separation board was marked indicating the applicant gave a verbal response and was authenticated by Ms. B.  

4.  On 23 August 2011, the unit commander again notified the applicant of initiation of separation under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense), for the same offenses listed above.  

5.  On 23 August 2011, the applicant refused to sign the election of rights form.  A note was made on the form indicating the Soldier’s refusal and was authenticated by 1SG M.

6.  On 30 August 2011, the applicant consulted with legal counsel, was advised of his rights under the administrative board procedures, requested consideration of his case by an administrative separation board and elected to submit a statement on his behalf.  The record is void of a statement by the applicant.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval with an under other honorable conditions discharge.

7.  On 5 October 2011, the applicant was notified to appear before an administrative separation board and advised of his rights.  A note was made on the notification that the Soldier refused to sign for the document and was witnessed by Mr. B, Mr. R, and Mr. N.

8.  On 27 October 2011, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions.
  
9.  On 2 December 2011, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

10.  The applicant was discharged from the Army on 16 December 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 9 May 2011, for disobeying a lawful order from a commissioned officer by having alcohol in his room x 2 (110222, 101108), consuming alcohol x 2 (110227, 110222), failed to go at the time prescribed to his appointed place of duty x 5 (101020, 101101, 101108, 110222 x 2).  The punishment consisted of forfeiture of $1,956 pay per month for two months (suspended), to be automatically remitted if not vacated before 15 October 2011, and 45 days extra duty and restriction (FG).

2.  DA Form 3349 (Physical Profile), dated 1 October 2010, reflected the applicant was on profile for medication usage, mental health diagnosis, substance abuse, and traumatic brain injury (TBI).  The profile expired on 29 December 2010 and was not designated as a temporary or permanent profile.  In block 10 of the physical profile, the applicant could not consume alcoholic beverages and referred to his permanent/temporary profiles for restriction(s).  The profile was updated on 30 December 2011 and expired 30 March 2011.

3.  Four negative counseling statements dated between 27 August 2010 and 12 January 2011, for disobeying a lawful order x2 (101108, 110112), and failing to report, no alcohol profile and being a high risk Soldier. 

4.  Commander’s Critical Incident Report (CCIR), dated 22 February 2011, reflect the applicant was not at formation and the squad leader was not able to contact him.  The unit conducted a visit to the applicant’s residence and found him asleep on his bed.  When awaken he was combative, was unable to speak legibly, and found evidence he had been drinking.  He was transported to the hospital where he had to be sedated.  His blood alcohol content was stated to be .393.

5.  CCIR, dated 27 February 2011, reflect the applicant’s platoon sergeant conducted a room check and found there was no answer.  The applicant contacted the platoon sergeant by phone and he ordered the staff duty NCO to open the applicant’s door.  The applicant appeared to be very groggy and unable to maintain his balance.  The platoon sergeant called 911 and once fire department personnel arrived the applicant became combative.  He was transported to the hospital and a check was conducted of his room.  The platoon sergeant and staff duty runner found two bottles of alcohol and a empty bottle of valium.

6.  State of North Carolina Order for Arrest, indicated the applicant failed to appear in court for a hit/run leave scene with property damage charge on 27 June 2011.

7.  Criminal Court Record, dated 7 July 2011, reflect the applicant was found guilty of simple worthless check.  The applicant was ordered to pay restitution in the amount of $38.

8.  A printout of the applicant’s criminal record dated between 11 May 2006 and 6 July 2010, reflected the applicant had a charge for civil revocation of his driver’s license, driving while impaired, reckless driving to endanger, intoxicated and disruptive, harassing phone call, assault of a government official/employee, and a hit/run leave scene with property damage.

9.  DA Form 3822 (Report of Mental Status Evaluation), dated 20 June 2011, reflect the applicant had no obvious impairments and could understand the difference between right and wrong, had a medically disqualifying physical condition.  He was diagnosed with an alcohol dependence, alcohol withdrawal, depressive d/o NOS, occupational and marital problems.  His medical conditions at the time were ulcerative colitis with total cholectomy and J pouch, hyerlipidemia, and hypertension.  He tested negative during his Post Traumatic Stress Disorder and Mild TBI screening.

10.  MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 7 March 2011, reflect the applicant had a clear thought process and was mentally responsible.  He was diagnosed with an alcohol dependence and depression NOS.  He had a history of ulcerative colitis, complicated alcohol withdrawal syndrome, HLD, and HTN.

11.  A memorandum for record, dated 18 March 2011, indicating the command intended to separate the applicant for two incidents of being drunk on duty, violating battalion policies 22, 28, and 29 and Womack Army Medical Center Policy 24, and being a Army Substance Abuse Program failure.

12.  Thirteen NCOERs covering the period of April 1999 through 30 September 2010.  The applicant received nine reports where he was rated as “Among the Best” by his raters and received “1/1” and “1/2” ratings for “Overall Performance/Overall Potential” ratings from his senior raters (SRs).  He received three “Fully Capable” ratings from his raters and a “2/1,” “2/2,” and “3/3,” rating from his SRs for “Overall Performance/Overall Potential.”  On his last evaluation, he received a “Marginal” rating from his rater with a “5/5” for “Overall Performance/Overall Potential” from his SR.  

13.  A memorandum, dated 6 June 2011, disqualifying the applicant for the Army Good Conduct Medal (AGCM) for the period of 13 July 2007 through 12 July 2010.  The applicant acknowledged the disqualification by initialing the memorandum and elected not to submit a statement in his behalf.  

14.  DA Forms 1059 (Service School Academic Evaluation Reports), indicate the applicant successfully completed WLC and ALC.  He was released from the United States Army Drill Sergeant School.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 28 June 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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 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 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.  The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in an NCO.  It brought discredit on the Army, and was prejudicial to good order and discipline.  The applicant, as an NCO, had the duty to support and abide by the Army's alcohol abuse policies.  By abusing alcohol, receiving a FG Article 15, and four negative counseling statements, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  

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 that he had good service which included three combat tours, a BSM, and completion of several military schools and training courses.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

5.  The applicant’s service record contains documentation that supports a diagnosis of several in-service medical conditions; however, a careful review of the entire record reveals that these medical conditions did not overcome the reason for discharge and characterization of service granted.  The record shows that on 7 March 2011 and 20 June 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he was suffering from these medical conditions, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same conditions that completed their service successfully.

6.  The applicant contends the discharge was unjust because he received a GOMOR for the same misconduct.  However, a GOMOR is an administrative action and is not punitive in nature.  Further, 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 Article 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.   

7.  Lastly, the applicant contends the event that caused his discharge from the Army was an isolated incident.  However, the evidence in the applicant’s record indicates he displayed unacceptable behavior on several occasions.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  Even if his misconduct was a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.

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

9.  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:  26 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)		AR20130012232



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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