IN THE CASE OF:	Mr. 

      BOARD DATE:	26 March 2014

      CASE NUMBER:	AR20130012395
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 24, contains the erroneous character of service of under other than honorable conditions.  

3.  In view of the error, the Board directed an administrative correction to block 24, character of service to read “General, Under Honorable Conditions,” as approved by the separation authority.  




      
      
      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 under other than honorable conditions to fully honorable.

2.  The applicant states, in effect, he was a young Soldier, an E-3, and he had problems with himself and others involved.  He is now 28 years old.  He requested to transfer to a different unit, to prove to his superiors that he had changed while being deployed in Iraq, and so he would not be judged for his past.  However, his commander did not want to hear his side of the story, but demoting and discharging him were the final results.  He was not treated fairly.  He is enrolling in college but was informed his discharge needs to be upgraded to qualify.  He has over 90 days of active duty Post 9/11 educational benefits and he is an Army Veteran.  He never received a second chance or fresh start.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	8 July 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	19 September 2006
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	Co A, 801st Brigade Support Battalion, 506th 
			Regimental Combat Team, Multi-National Division-
			Baghdad, Camp Rustamiyah, Iraq 
	f.	Current Enlistment Date/Term:	13 April 2004, 4 years
	g.	Current Enlistment Service:	2 years, 5 months, 7 days
	h.	Total Service:	2 years, 5 months, 7 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	92A10, Automated Logistical Specialist
	m.	GT Score:	107
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (051120-060825)
	q.	Decorations/Awards:	NDSM; ICM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No, waived, although not entitled to
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 13 April 2004, for a period of 4 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Iraq.  His record documents no acts of valor or significant achievement.  He completed 2 years, 5 months, and 7 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 19 August 2006, 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 the following incidents:

	a.	being found guilty in a Company Grade Article 15 hearing (050428) for disobeying and being disrespectful toward a noncommissioned officer, in violation of Article 91, UCMJ;
	b.	being found guilty in a Company Grade Article 15 hearing (050929) for leaving his appointed place of duty, in violation of Article 86, UCMJ, and for being disrespectful to a noncommissioned officer, in violation of Article 91, UCMJ; 
	c.	being found guilty in a Company Grade Article 15 hearing (060727) for falsifying a sick slip, in violation of Article 107, UCMJ; 
	d.	being found guilty in a Company Grade Article 15 hearing (060812) for disobeying a noncommissioned officer, in violation of Article 91, UCMJ; 
	e.	being counseled for failing to report to his appointed place of duty on numerous occasions (050105, 050509, 050815, 051128, and 060303); 
	f.	being counseled for disobeying a noncommissioned officer on three occasions (050601, 050915, and 060402); 
	g.	being counseled for being disrespectful to a noncommissioned officer on numerous occasions (050915, 050916, 060402, and 060607; 
	h.	being counseled for being disrespectful to a warrant officer (051203); and 
	i.	being counseled for sleeping on post (051203).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 19 August 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and although he was not entitled to an administrative separation board, he voluntarily and unconditionally waived having his case considered by an administrative separation board, and did not submit a statement in his own 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 with a general, under honorable conditions discharge.  

4.  On 22 August 2006, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of a general, under honorable conditions.

5.  The applicant was discharged from the Army on 19 September 2006, with an under other than 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.  

6.  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 12 August 2006, for disobeying an NCO (060731).  The punishment consisted of forfeiture of $297 and 14 days of extra duty, (CG). 

2.  Article 15, dated 27 July 2006, for making a false official statement (060702).  The punishment consisted of forfeiture of $297 and 14 days of extra duty, (CG). 

3.  Article 15, dated 29 September 2005, for failing to go to his appointed place of duty (050829), being disrespectful in deportment toward an NCO (050829).  The punishment consisted of reduction to the grade of E-1, forfeiture of $311 per month for two months (suspended), 14 days of extra duty, (CG). 

4.  Article 15, dated 28 April 2005, for being disrespectful in deportment toward an NCO and disobeying an NCO (050307).  The punishment consisted of reduction to the grade of E-2, forfeiture of $323, 14 days of extra duty and restriction, (CG). 

5.  Ten negative counseling statements, dated between 5 January 2005 and 7 June 2006, for failing to be at his appointed place of duty at the prescribed time; failing to follow instructions; failing to follow a lawful order or regulation; disrespecting an NCO; performing unsatisfactorily; showing up late for guard duty; disrespecting a chief warrant officer; and dereliction of duty.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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.  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 four Article 15 actions for multiple violations of the Uniform Code of Military Justice and numerous 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 that he was young and had issues with himself and others, at the time of the discharge.  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.

5.  The applicant contends he requested to transfer to a different unit—he never received a second chance or fresh start.  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.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by imposition of non-judicial punishments.  The applicant failed to respond appropriately to these efforts.

6. The applicant contends the discharge was unjust because he was not treated fair—the commander did not want to hear his side of the story.  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 four Article 15 actions 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. The applicant contends he is trying to enroll in college but was informed an upgrade to an honorable discharge would allow him 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. 

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

9.  However, notwithstanding the propriety of the applicant's discharge, the record shows that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 24, character of service as under other than honorable conditions.  In view of the foregoing, it is recommended that an administrative change be made to block 24, character of service to "general, under honorable conditions," as approved by the separation authority.  Except for the foregoing modification to the applicant's characterization of service, the discharge was both proper and equitable.  Therefore, recommend the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  26 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:		Yes
Change Characterization to:	General, Under Honorable Conditions
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)		AR20130012395

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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