IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 April 2014

      CASE NUMBER:  	AR20130014152
___________________________________________________________________________

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 an upgrade of his general, under honorable conditions discharge to honorable. 

2.  The applicant states, in effect, he disobeyed a no contact order from his commander which resulted in his discharge.  He went to jail for allegedly raping his fiancé and was issued a no contact order.  Once he was found not guilty of the charges and returned to his unit, he violated the order from his commander because he found out his fiancé was pregnant.  He states he is currently married to her.  He regrets his actions that resulted in him being separated from the military and would like to overcome the incident with an upgrade of his characterization of service.  He would like to receive his benefits under the GI Bill in order to continue his education and become an productive member of society.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 August 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				1 April 2013
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200, 
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				1-101st Combat Aviation Brigade, Fort 
Campbell, KY
f. Current Enlistment Date/Term:		7 July 2009/6 years
g. Current Enlistment Service:		3 years, 8 months, 25 days
h. Total Service:				3 years, 8 months, 25 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		15B10, Aircraft Powerplant Repairer
m. GT Score:					119
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AGCM, NDSM, GWTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				No



SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 7 July 2009, for a period of 6 years.  He was 18 years old at the time of entry and a high school graduate.  His record is void of any significant acts of valor and achievement.  He completed 3 years, 8 months, and 25 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Campbell, Kentucky.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 11 February 2013, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200 Chapter 14-12c, misconduct (serious offense).  Specifically for:

     a.  wrongfully possessing prescription medication not prescribed to him.

     b.  disobeyed an order from a commissioned officer by violating a verbal no contact order.

     c.  violated a verbal no contact order  a commissioned officer.

     d.  violated CG Policy Letter 17, paragraph 4e, by having Ms. D live in his barracks room.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 13 February 2013, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, 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.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 4 March 2013, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 1 April 2013, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.         

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DA Form 2823 (Sworn Statement) of the applicant, dated 30 July 2012, reflects he admitted to his chain of command that his fiancé Ms. D, lived with him in his barracks room.
2.  DA 4137 (Evidence/Property Custody Document), dated 30 July 2012, reflects the military police took into custody as evidence one bottle of Celebrix, 200mg, a bottle of promethazine, 25 mg, and a bottle of butalbital/apap/caffeine tablets, 27 pills.

3.  A Military Police (MP) Report, dated 30 July 2012, reflects the applicant was the subject of an investigation for unlawful entry, larceny, and failure to obey a lawful order.

4.  A MP Report, dated 31 July 2012, reflects the applicant was the subject of an investigation for unlawful forced entry (on post), and larceny of private property (on post). 
      
5.  Four negative counseling statements dated between 6 August 2012 and 17 October 2012, for violating a no contact order, notification of intent to separate under Chapter 14-12c, civilian living in the barracks, and financial obligations after discharge from the Army.
      
6.  General Sessions Court of Montgomery County, Tennessee, dated 15 August 2012, reflects the applicant was charged with rape.  However, the alleged victim desired not to prosecute.  The case was closed nolle prosequi.

7.  CG Policy Letter 17, dated 3 May 2012, paragraph 4e states, in effect, visitation hours for all units on Fort Campbell was between 1700-2400 hours on weekdays and from 1200-2400 hours on weekends and holidays.  Cohabitation was strictly prohibited. 

8.  DA Form 3822 (Report of Mental Status Evaluation), dated 12 September 2012, reflects the applicant had no obvious impairments and could appreciate the difference between right and wrong.  No diagnoses were made at the time of evaluation and he had a negative screening for Post Traumatic Stress Disorder (PTSD) and Mild Traumatic Brain Injury (MTBI).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 29 July 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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, 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.  The incidents of misconduct diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by a charge of rape by civilian authorities and four 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 that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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.

5.  The records show the proper discharge and separation authority procedures were followed in this case.  

6.  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:  11 April 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:		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)		AR20130014152



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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