IN THE CASE OF:  	Mr.

      BOARD DATE:  	4 April 2014

      CASE NUMBER:  	AR20130013334
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation that follows, the Board determined the characterization of service is now inequitable.  The Board found that owing to the unique circumstances present in the case, to include his documented performance prior to being "stop lossed," his prior successful combat tour; and, the execution of the separation action itself, mitigated the discrediting entry in the service record.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board 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 of his discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that his discharge should be upgraded based on the time that has elapsed since his discharge.  He contends his discharge was dated after his original ETS as shown on his DD Form 214.  He also contends his characterization was incorrect due to stop loss affecting his ETS date and that his awards do not accurately reflect his period of enlistment.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 July 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			7 July 2005
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			Rear Det, 3rd Bn, 7th IN Regt, Fort Stewart, GA
f. Current Enlistment Date/Term:	12 June 2001, 4 years
g. Current Enlistment Service:	4 years, 26 days
h. Total Service:			4 years, 26 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	63A10, Abrams Tank System Maintainer
m. GT Score:				113
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (020901-030826)
q. Decorations/Awards:		PUC, NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 12 June 2001, for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate.  His record indicates he served in Iraq and achieved the rank of SPC/E-4.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 4 years and 26 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that 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 offenses:

a. failure to follow instructions on more than one occasion

b. being disrespectful to a noncommissioned officer

c. failing to report for duty

d. confessing to fraudulent entry by design

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 2 June 2005, the applicant was given the opportunity to consult with legal counsel, was advised of the impact of the discharge action and submitted a statement on 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 an UOTHC discharge (sic).  

4.  On 21 June 2005, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 7 July 2005, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with 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, imposed on 22 December 2004, for failure to go at the time prescribed to his appointed place of duty x 2 (040803 and 040807), derelict in the performance of his duties x 3 (040709, 040729x2).  The punishment consisted of a reduction to the grade of E-3, forfeiture of $369.00 pay per month for one month, and extra duty and restriction for 14 days (CG).

2.  Several negative counseling statements dated between 9 January 2004 and 24 March 2005, for disrespect towards a noncommissioned officer, lying to a noncommissioned officer, falling asleep on duty, failure to follow instructions, failure to keep his weapon secured, and notification of pending separation action under the provisions of Chapter 5-13 (Personality Disorder).

3.  Report of Mental Status Evaluation, dated 7 February 2005, indicating the applicant had been diagnosed with major depression, chronic moderate without psychotic symptoms, personality disorder NOS, primary diagnosis.  The applicant met psychiatric criteria for expeditious separation IAW Chapter 5-13.

4.  Sworn Statement from another Soldier, indicating he was told by the applicant that he had been diagnosed with being "bipolar," prior to his enlistment and that he disclosed this condition to his recruiter and MEPS personnel.

5.  A copy of the applicant's enlisted record brief (ERB), dated 2 May 2005, indicating the applicant's ETS date was 31 May 2006.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None were 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 of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice and several 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’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding 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 incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends his discharge should be upgraded as a result of the seven years that have elapsed since his discharge.  However, the US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

6.  The applicant also contends that as a result of stop-loss he was held past his ETS date.  However, the record shows that as a result of stop-loss the applicant's ETS date was changed to 31 May 2006; therefore the applicant was not held past his ETS date.  

7.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with her overall service record.

8.  The applicant expressed that his awards do not accurately reflect his period of enlistment.  However, this issue does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization

9.  Therefore, 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 preceding Discussion and Recommendation, the Board determined the characterization of service is now inequitable.  The Board found that owing to the unique circumstances present in the case, to include his documented performance prior to being "stop lossed," his prior successful combat tour; and, the execution of the separation action itself, mitigated the discrediting entry in the service record.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was proper and equitable and the Board voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  4 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	1	No Change:  4
(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)		AR20130013334



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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