IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 April 2014

      CASE NUMBER:  	AR20130013036
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service and the circumstances surrounding the discharge and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      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 to his discharge from under other than honorable conditions to honorable.

2.  The applicant states, in effect, that the process that was followed in processing his discharge was done without proper due process, and he did complete his first period of service.  While on active duty he received physical injuries, and he is not able to work at this time.  Based on his discharge he was informed that he did not qualify for any benefits.  He also tried to request unemployment and was denied because he did not complete the first full term of his service.  He has no income and he has to pay child support and bills and he doesn’t know how he is going to pay them because he was denied the help he needed. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 July 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			10 May 2013
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14, paragraph 14-12b, 					JKA, RE-3
e. Unit of assignment:			643rd Engineer Company, 84th Engineer Battalion
130th Engineer Brigade, Schofield Barracks, HI
f. Current Enlistment Date/Term:	15 April 2009, 4 years, extended for 1 month on
28 April 2010; new ETS date: 14 May 2013
g. Current Enlistment Service:	4 years, 0 months, 26 days
h. Total Service:			4 years, 0 months, 26 days
i. Time Lost:				30 days (Military Confinement)
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	12R10, Interior Electrician
m. GT Score:				89
n. Education:				High School Graduate
o. Overseas Service:			Hawaii
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, GWOTSM, ASR,OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No




SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 15 April 2009 for a period of four years and extended for one month on 28 April 2010.  He was 30 years old at the time of entry and a high school graduate.  He served in Hawaii and earned an AAM, NDSM, GWOTSM, ASR, and an OSR.  He was serving in Hawaii when his discharge proceedings were initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army.  However, the applicant’s available record does show that on 25 April 2013, the intermediate commander recommended that the applicant be separated from the Army prior to the expiration of his current term of service under the provisions of AR 635-200, Chapter 14-12b (Pattern of Misconduct), with issuance of an under other than honorable conditions discharge.

2.  On 3 May 2013, the separation authority approved the waiver and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

3.  On 17 April 2013, the trial counselor (CPT, JA) reviewed the separation action and determined it to be legally sufficient.  

4.  Furthermore, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.

5.  The record further shows that on 10 May 2013, the applicant was discharged under the provisions of Chapter 14, AR 635-200, for pattern of misconduct, with a characterization of service of under other than honorable conditions, a Separation Program Designator (SPD) code of JKA and a reentry (RE) code of 3.  

6.  The applicant’s DD Form 214 block 29; dates of time lost during this period, does not reflect any evidence of unauthorized absences or time lost.  However, the applicant’s record contains a record of trial by summary court-martial, dated 21 March 2013, which shows the applicant was sentenced to military confinement for 30 days.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Inmate’s Release Order, dated 23 January 2013, reflecting that pretrial confinement of the applicant was not warranted and he was directed to be released by the IRO Magistrate.  

2.  Record of Trial By summary court-Martial, dated 21 March 2013.  The applicant was found guilty of the following violation of the UCMJ:  

	a.  Wrongfully driving his motorcycle when driving privileges were suspended 
(3 January 2013).

	b.  Operating a motorcycle while impaired by alcohol (12 January 2013).

	c.  Failing to submit to a lawfully directed chemical test (12 January 2013).

The punishment consisted of a reduction to E-1; forfeiture of $1,010.95 pay for one month; and confinement for 30 days.  

3.  Confinement Order dated 21 March 2013.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, dated 14 June 2013, a DD Form 214; and a self-authored statement.   

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 did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

2.  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 factors to merit an upgrade of the applicant's discharge.  

3.  The applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army.  However, the record does contain the senior intermediate commander recommendation, a legal review by the trial counselor and the separation approving authority’s memorandum.  Furthermore, there is a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

4.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12b by reason of pattern of misconduct, with a characterization of service of under other than honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  The applicant's contentions about him not receiving proper due process in accordance with discharge procedures were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's contention.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

6.  The applicant contends that he needs medical treatment for physical injuries he suffered while on active duty, along with unemployment benefits due to him.  However, eligibility for veteran's benefits to 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.

7.  Therefore, based on the available evidence the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service and the circumstances surrounding the discharge and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  25 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  5	No Change:  0
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:	Honorable
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)		AR20130013036



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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