IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 February 2014

      CASE NUMBER:  	AR20130013264
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service 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.  This action entitles restoration of grade/rank to E-4/SPC.




      
      
      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 that his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that the offense that he allegedly committed does not warrant separation under the other than honorable discharge of service.  His discharge was unfair because he had no civilian conviction or any action that brought discredit to the Army.  The reasons stated for his discharge were not sufficient enough to warrant such action.   
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			18 July 2013	
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				24 April 2013
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense),              								AR 635-200, 14-12c, JKQ, RE-3	
e. Unit of assignment:				A Co, 526 BSB, 2nd BCT, 101st Airborne Div 							Fort Campbell, KY
f. Current Enlistment Date/Term:		23 April 2009, 4 years
g. Current Enlistment Service:		4 years, 0 months, 2 days
h. Total Service:				5 years, 2 months, 25 days
i. Time Lost:					None
j. Previous Discharges:			RA, 080130-090422/HD
      US Navy period served NIF
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		88M10, Motor Transport Operator
m. GT Score:					90
n. Education:					HS Graduate
o. Overseas Service:				Korea, SWA
p. Combat Service:				Afghanistan (100530-110417)
q. Decorations/Awards:			ARCOM, VUA, AGCM, NDSM, ACM-CS 								GWOTEM, GWOTSM, KDSM, ASR 									OSR-2, NSSDR, NATOMDL-2 
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 30 January 2008 and on 23 April 2009, he reenlisted for a period of 4 years.  The applicant record indicates that he previously served in the US Navy; however, the period of service is not listed in his official record.  He was 22 years old at the time of his RA enlistment and a high school graduate.  When his discharge proceeding was initiated he was serving at Fort Campbell, KY.  He served a combat tour in Afghanistan and completed over 5 years of active service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 20 December 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, specifically for the commission of the following serious offenses:  (1) On 10 May 2010, operated a motor vehicle while impaired; (2) On 4 August 2011, wrongfully operated a personally owned vehicle without a driver’s license; (3) On 29 September 2011, wrongfully operated a personally owned vehicle without a driver’s license; (4) On 29 September 2011, made a false statement to a superior noncommissioned officer; (5) On 13 December 2011, made a false statement to a superior noncommissioned officer; (6) On 3 November 2011, were derelict in the performance of duty; (7) On 13 October 2011, failed to go at the time prescribed to appointed place of duty; (8) On 14 October 2011, failed to go at the time prescribed to appointed place of duty; (9) On 19 October 2011, failed to go at the time prescribed to appointed place of duty; (10) On 28 October 2011, failed to go at the time prescribed to appointed place duty; (11) On 3 November 2011, failed to go at the time prescribed to appointed place duty; (12) On 4 November 2011, failed to go at the time prescribed to appointed place duty; (13) On 10 November 2011, failed to go at the time prescribed to appointed place duty; (14) On 12 November 2011, failed to go at the time prescribed to appointed place duty; (15) On 13 December 2011, failed to go at the time prescribed to appointed place duty; (16) On 20 December 2011, failed to go at the time prescribed to appointed place duty; (17) On 21 December 2011, went from appointed place of duty; (18) On 30 May 2012, failed to go at the time prescribed to appointed place duty; (19) On 31 May 2012, failed to go at the time prescribed to appointed place duty; (20) On 28 June 2012, failed to go at the time prescribed to appointed place duty; and (21) On 17 July 2012, failed to go at the time prescribed to appointed place duty.

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

3.  On 16 January 2013, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and indicated that statements on his own behalf would be submitted.  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 27 February 2013, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 13 March 2013, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions.  

6.  On 28 March 2013, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

7.  The applicant was discharged from the Army on 24 April 2013, with a characterization of service of under other than 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. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Several negative counseling statements between the periods of 10 May 2010 through 
17 July 2012 for operating a motor vehicle while impaired, operating a POV without a driver’s license, making a false official statement to a superior NCO (2), dereliction of duty, and FTR (16), disobeying a direct order, lying to a noncommissioned officer, suspended drivers license.  

2.  Findings and recommendations of an administrative separation board with allied documents, dated 13 March 2013.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application dated, 25 July 2013; a DD Form 214; a self-authored statement; and a Request Pertaining to Military Records.  

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’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 his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by multiple violations of the Uniform Code of Military Justice.

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 claims he had no civilian conviction, and the offenses that caused his discharge were minor in nature and did not warrant separation under other than honorable conditions.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

5.  The applicant contends the discharge was unjust because it was based on malice and unproven evidence, mischaracterization, and false allegations.  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 numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and any additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

6.  The records show the proper discharge and separation authority procedures were followed in this case.  
7.  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: Personal Appearance    Date: 24 February 2014    Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers: Yes/Wife 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  3	No Change:  2
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:		E-4/SPC
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)		AR20130013264



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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