IN THE CASE OF:	Mr.

      BOARD DATE:	28 April 2014

      CASE NUMBER:	AR20130013684
___________________________________________________________________________

Board Determination and Directed Action

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 was both proper and equitable and voted to deny relief.




      
      
      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 general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant’s counsel-authored statement, in pertinent part and in effect, states the circumstances of the applicant’s discharge are both “inequitable, improprietious, and each are intertwined, one with the other.”  The precipitating event for the unit commander’s recommendation to separate the applicant for the listed misconduct was his civil arrest for DUI.  If not for that arrest, his prior minor disciplinary issues had been addressed and he was on the course to successfully completing his term of enlistment.  There is no technical issue with the administrative process, but rather, the focus is on the command’s failure and noncompliance with Army Regulations in the events that preceded the arrest.  When the applicant recognized he was struggling with the use of alcohol, weeks and months prior to the DUI arrest, he asked his leadership for a command referral to ASAP.  He owned-up to his personal obligation requesting help, but for whatever reason the request was never honored or that the unit commander did not become involved.  Army Regulations 635-200 and 600-85 with the evidence of record reveals the applicant was asking for help through proper channels in compliance with established procedures.  It also reveals command inaction.  Although it may not have resulted in the DUI arrest, the catalyst for the applicant’s discharge is that the command most certainly did nothing to prevent it.  If the command had comported itself with the letter and the spirit of the regulations, specifically when the applicant was motivated to ask for aid, the misstep that led to his discharge would have been unlikely.  The command’s failure has resulted in inequity.  Since the applicant’s discharge, he continued to march—he is a student in good standing at a college.  Therefore, it is right and correct to permit him to move forward in his academic and professional life with a characterization that accurately reflects the injustice facts of his separation.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	25 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	11 August 2011
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	Ordinance Co, 87th Combat Sustainment Support 
			Battalion, 3rd Sustainment Brigade, 3rd ID, 
			Fort Stewart, GA
	f.	Current Enlistment Date/Term:	27 February 2008, 4 years
	g.	Current Enlistment Service:	3 years, 5 months, 15 days
	h.	Total Service:	3 years, 5 months, 15 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
	m.	GT Score:	112
	n.	Education:	13 years
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; 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 27 February 2008, for a period of 4 years.  He was 32 years old at the time of entry and had 13 years of education (received a vocational certificate).  He was trained in and awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic.  His record documents no acts of valor or significant achievement.  He completed 3 years, 5 months, and 15 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 9 June 2011, 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 a pattern of misconduct, specifically for the following reasons; actions that were not becoming of a Soldier and not living up to the Army Values:

	a.	receiving a Summarized Article 15 for failing to report to his appointed place of duty at the prescribed time on two occasions (081223 and 081224);
	b.	receiving a Field Grade Article 15 for driving under the Influence of Alcohol (090228);
	c.	receiving a Company Grade Article 15 for falsifying a DA Form 3349, Physical Profile, (100524); and
	d.	being charged with his second DUI (110220). 

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 22 June 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected not to submit 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 a general, under honorable conditions discharge.  

4.  In an undated memorandum, 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 11 August 2011, with a characterization of service of general, under 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.  An Executive Summary rendered by the battalion commander provides a summary of the events leading to the applicant’s separation action and a timeline of previous offenses and actions taken.

2.  Article 15, dated 28 June 2010, for falsifying an official document (100409-100524).  The punishment consisted reduction to E-2, forfeiture of $378.00 pay for one month (suspended), and 14 days of extra duty, (CG).

3.  Article 15, dated 21 April 2009, for DUI (090228).  The Article 15 does not list the punishments imposed; however, the executive summary by the battalion commander indicates the applicant was reduced to E-1, forfeiture of pay, and 45 days of extra duty, (FG).

4.  Article 15, dated 20 January 2009, for failing to go to his appointed place of duty at the prescribed time on two occasions (081224 and 081223).  The punishment consisted of 14 days of extra duty and 14 days of restriction (suspended), (summarized CG). 

5.  Five negative counseling statements dated between 5 January 2011 and 1 March 2011, for commander’s intention to initiate separation for pattern of misconduct due to a second offense of DUI; failing to be at his appointed place of duty at the prescribed time; and driving under the influence/drunk driving.

6.  An MP Blotter, dated 20 February 2011, indicates the applicant was the subject of an investigation for DUI. 

7.  Three civilian police traffic citations, dated 20 February 2011, indicates the applicant was cited for “DUI Alcohol Less Safe” (he was determined to be a less safe driver due to being under the influence of alcohol), driving the wrong way on a one way street, and “DUI Alcohol” The citations included a booking form that indicates the applicant was booked for the offenses on 20 February 2011; the arresting officer’s sworn report; and the field arrest report.

8.  ASAP Medical Appointment slip, dated 16 March 2011, indicates the applicant’s appointment for a triage orientation group.

9.  Behavioral Health Evaluation, dated 10 March 2011, indicates the applicant being diagnosed with alcohol dependence.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a memorandum, dated 9 June 2011, subject: Recommendation for Separation Under AR 635-200, Chapter 14, Paragraph 14-12b, Patterns of Misconduct; two supporting statements, entitled “Affidavit,” rendered by SGT S, dated 5 June 2013 and the applicant, dated 15 July 2013; letter, dated 24 May 2013, which confirms the applicant’s enrollment in college as a full-time student with transcripts; and applicant’s counsel cover letter, dated 21 July 2013, with counsel’s authored statement on behalf of the applicant. 

POST-SERVICE ACTIVITY: 

The applicant provided documents reflecting he is a full-time student in college.  

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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3.  

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s service record, and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the narrative reason for his discharge.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards for acceptable conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's alcohol abuse policies.  By abusing alcohol and several incidents of misconduct that established a pattern of misconduct, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a fully honorable discharge.  

3.  The counsel, on behalf of the applicant, contends that the catalyst for the applicant’s discharge is that the command failed to prevent the applicant’s DUI arrest and the command’s noncompliance with Army Regulations in the events that preceded the arrest because, if the command had comported itself with the letter and the spirit of Army Regulations 635-200 and 600-85, specifically when the applicant was motivated to ask for aid, the misstep that led to his discharge would have been unlikely.  Accordingly, the command’s failure has resulted in inequity.  However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling, by the impositions of nonjudicial punishments, and by providing for his enrollment in a substance abuse program in March 2009 and subsequently, he successfully graduated from the program in April 2009.  The applicant failed to respond appropriately to these efforts.  The applicant’s record of service was marred by three Article 15 actions for violations of the Uniform Code of Military Justice and negative counseling statements.  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.  

4.  The applicant contends the narrative reason for the discharge should be changed as well.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

5.  The third party statement or affidavit provided with the application speaks of the circumstances and events surrounding the applicant’s latter incident or conduct that led to the applicant’s discharge; however, the person providing the statement was not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, the statement does not provide any evidence sufficiently compelling to overcome the presumption of government regularity.

6.  The applicant contends that since leaving the Army he has continued to march by being a student in good standing at a college and bettering himself.  Therefore, it is right and correct that he be permitted to move forward in his academic and professional life with a characterization of discharge that accurately reflects the aforementioned injustice of the facts of his separation.  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.  

7.  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

8.  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 his overall service record.  Accordingly, 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:  28 April 2014         Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  Mr. Victor Kelley, Attorney at Law, A Division of Victor Kelley LLC, P.O. Box 381028, Birmingham, AL 35238

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
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)		AR20130013684

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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