IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 January 2014

      CASE NUMBER:  	AR20130012666
___________________________________________________________________________

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 general, under honorable conditions.  

3.  In view of the error, the Board directed an administrative correction to block 24, character of service to read "Under Other Than 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 an upgrade of his general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, he had less than a year in the military when he was discharged and he served honorably in the Texas National Guard since being separated from active duty service.  He feels the narrative reason for his separation is unsupported because he had not received any negative counseling statements or non-judicial punishment until the discharge process began.  He believes his leadership failed to recognize and properly act on his family care plan crisis, which led to his discharge.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			26 June 2013
b. Discharge Received:			General , Under Honorable Conditions
c. Date of Discharge:				23 March 2007
d. Reason/Authority/SPD/RE Code:		Pattern of Misconduct, AR 635-200, Chapter 
14-12b, JKA, RE-3
e. Unit of assignment:				1st Air Cavalry Brigade (Rear) (Provisional) 
Fort Hood, TX
f. Current Enlistment Date/Term:		1 August 2005/4 years, 20 weeks
g. Current Enlistment Service:		1year, 4 months, 19 days
h. Total Service:				1 year, 4 months, 19 days
i. Time Lost:					80 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		42A10, Human Resources Specialist
m. GT Score:					109
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 1 August 2005, for a period of 4 years and 20 weeks.  He was 20 years old at the time of entry and a high school graduate.  He was awarded the Military Occupational Specialty (MOS) 42A, Human Resources Specialist.  He completed 1 year, 4 months, 19 days of active duty service.  His record is void of any significant acts of valor or achievement.  When his discharge proceedings were initiated, the applicant was serving at Fort Hood, Texas.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 4 August 2006, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, commission of a serious offense.  Specifically for a conviction at a summary court-martial for one specification each of being absent without leave (AWOL), disobeying an NCO x 2, receiving an Article 15 for failing to be at his appointed place of duty, and receiving a vacation of forfeiture of pay for the Article 15 imposed on 29 March 2006.

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

3.  On 7 August 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case 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.  On 
8 August 2006, the battalion commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 15 August 2006, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  On 27 September 2006, the separation pertaining to the applicant was disapproved, pending further legal action by court-martial and pending a CID investigation.

6.  On 3 January 2007, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, commission of a serious offense.  Specifically for being convicted at a summary court-martial for one specification each of AWOL and disobeying an NCO.

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

8.  On 4 January 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

9.  On 30 January 2007, the separation action under AR 635-200, Chapter 14-12c, commission of a serious offense, initiated on 4 January 2007, was rescinded.
10.  On 30 January 2007, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, pattern of misconduct. Specifically for:

     a.  Convicted at a summary court-martial for being AWOL x 2 (060406-060411 and 060411-060614).

     b.  Willfully disobeyed an NCO.

     c.  Arrested for assault with bodily harm on 16 May 2006.

     d.  Received a Field Grade (FG) Article 15 for failure to report and willfully disobeying an NCO and vacation of punishment.

     d.  Drove with an invalid driver’s license.

     e.  Multiple counseling statements for breaking restriction, failure to report on several occasions, failure to maintain vehicle registration, and disrespect toward a NCO.

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

12.  On 30 January 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  On 6 February 2007, the intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

13.  On 9 February 2007, the applicant’s conditional waiver submitted on 30 January 2007, for a general discharge was disapproved.

14.  On 21 February 2007, the applicant was notified to appear before an administrative separation board and advised of his rights.

15.  On 12 March 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board.

16.  On 19 March 2007, the separation authority approved the unconditional waiver request, reduced the applicant to the grade of E-1, and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.


17.  The applicant was separated on 23 March 2007, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKA, and an RE code of 3.  

18.  The applicant's record shows he was AWOL during the period 25 January 2006 through 26 January 2006, 6 April 2006 through 10 April 2006, 11 April 2006 through 13 June 2006, 23 June 2006 through 16 July 2006.  The applicant returned to duty or was confined by civilian or military authorities and returned to duty.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 29 March 2006, for failure to go at the time prescribed to his appointed place of duty and disobeying a lawful order from an NCO.  The punishment consisted of reduction to E-1, forfeiture of $297 pay (suspended), to be remitted if not vacated before 
3 July 2006, and 14 days of extra duty and restriction (CG).  The applicant appealed the non-judicial punishment (NJP) to the field grade level.  His appeal was denied.

2.  DA Form 4187 (Personnel Action), dated 11 April 2006, reducing the applicant to E-1, effective 29 March 2006.

3.  DA Forms 4187, (Personnel Action), dated 26 January 2006, 31 January 2006, 
6 April 2006, 11 April 2006, 12 April 2006, 18 May 2006, 14 June 2006, 23 June 2006, 
17 July 2006, 20 July 2006 and 21 July 2006 changed the applicant’s duty status from present for duty (PDY) to confined by civilian authorities x 4; confined by civilian authorities to PDY; PDY to AWOL x 2; AWOL to PDY; AWOL to dropped from the rolls (DFR); DFR to PDY; and confined by military authority to confined by civilian authority. 

4.  Revocation Order 271-0129, dated 28 September 2006, Headquarters, III Corps and Fort Hood, Fort Hood, Texas, rescinded the applicant’s separation order number 258-0101, dated 15 September 2006.

5.  DD Form 2329 (Record of Trial by Summary Court-Martial), dated 1 August 2006, reflects  a trial proceeding on 23 June 2006, for two specification of being AWOL in violation of Article 86, UCMJ, and one specification of disobeying an NCO, in violation of Article 91, UCMJ.  He pled guilty to all of the specifications.  He was found guilty of one specification of being AWOL and disobeying an NCO.  His punishment consisted of 30 days confinement.

6.  DA Form 4430 (DA Report of Result of Trial), dated 23 June 2006, reflects the applicant pled not guilty to two specifications of being AWOL, in violation of Article 86, UCMJ, and one specification of disobeying an NCO, in violation of Article 91, UCMJ.  He was found guilty of one specification of being AWOL and disobeying an NCO.  His punishment consisted of 30 days confinement.
      
7.  DA Form 2707 (Confinement Order), dated 23 June 2006.

8.  DD Form 458 (Charge Sheet), dated 19 June 2006, charging the applicant with being AWOL from 6 April 2006 through 11 April 2006 and 11 April 2006 through 14 June 2006; and one specification of disobeying an NCO.
      
9.  An undated FH 4-50 (Court-Martial Charges), recommending the applicant to a summary court-martial.

10.  DD Form 458 (Charge Sheet), dated 18 may 2006, charging the applicant with violating Article 85 and 86 of the UCMJ.

11.  Eight negative counseling statements, dated between 21 March 2006 and 1 December 2006, for making disloyal statements, being insubordinate towards a commissioned officer, NCO, or warrant officer, failure to obey an order x 2, failure to be at multiple formations, permanently banned from Harvey Gym, and failure to follow restriction imposed under NJP.

12.  DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 
12 April 2006, vacated the suspension of punishment of forfeiture of $297 pay imposed on 
29 March 2006, by breaking restriction and failing to go at the prescribed time to his appointed place of duty.

13.  Electronic Military Police Report, emailed 9 November 2006, reflects the applicant was issued two citations for disregard of flashing red signal and driving with an invalid license.

14.  DA Form 3975 (Military Police Report), dated 20 November 2006, shows the applicant was the subject of an investigation for driving on revocation (on post).

15.  DA Form 3975-1 (Military Police Report-Additional Offenses), dated 20 November 2006, shows the applicant was the subject of an investigation for displaying expired license plate (on post).

16.  MEDCOM Form 699-R (Report of Mental Status Evaluation), dated 12 July 2006, shows the applicant had a clear thinking process and did not have any other mental health conditions that would explain the behavior that resulted in the initiation of the administrative action. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 11 June 2013, a DD Form 214, two National Guard Bureau (NGB) Forms 22, and NGB Form 55 (Honorable Discharge Certificate), dated 
9 September 2008.

POST-SERVICE ACTIVITY: 

The applicant states he served honorable in the Texas National Guard since his discharge from active duty. 


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 pattern of 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 a summary court-martial, a CG Article 15, and eight 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 he was in the military less than a year when his discharge process began, had family issues, and received no assistance from his chain of command.  However, he 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.  Further, 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 the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

5.  The applicant states he has served honorably in the Texas National Guard since his discharge.  The applicant’s post-service accomplishments have been noted as outlined on the application [and in the documents with the application].  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  The Army Discharge Review Board is authorized to consider post-service factors in the 
re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

6.  The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 24, characterization of service as general, under honorable conditions.  The discharge packet confirms the separation authority approved an under other than honorable conditions characterization of service.  

7.  In view of the foregoing and notwithstanding the propriety of the reason for the discharge, recommend the Board change block 24, characterization to read under other than honorable conditions, as approved by the separation authority. 
  
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:  31 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:		Yes
Change Characterization to:	Under Other Than 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)		AR20130012666



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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