IN THE CASE OF:	Mr. 

      BOARD DATE:  	4 June 2014

      CASE NUMBER:	AR20130015188
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the examiner’s 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.

2.  The applicant states, in effect, making one poor decision resulting in a misdemeanor conviction should not define his stateside and Iraq military service.  The applicant listed the awards he earned.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	15 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	24 February 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Civil Conviction), AR 635-200, Chapter 
			14, Section II, JKB, RE-3
	e.	Unit of assignment:	A Company, Operations Group, NTC, Fort Irwin
			CA
	f.	Current Enlistment Date/Term:	8 April 2008, 3 years
	g.	Current Enlistment Service:	10 months, 17 days
	h.	Total Service:	3 years, 5 months, 24 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (050831-080407) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	19D10, Cavalry Scout
	m.	GT Score:	129
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (061023-071019)
	q.	Decorations/Awards:	ARCOM-2; AGCM; NDSM; ICM-CS; GWOTSM 
			ASR; OSR; CAB; MUC
	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 31 August 2005, and reenlisted on 8 April 2008, for a period of 3 years.  He was 31 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout.  He served in Iraq.  He earned two ARCOM awards.  He completed 3 years, 5 months, and 24 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 8 December 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of conviction by a civil court (081001), pursuant to his guilty plea for committing burglary and battery.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 30 January 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions, and did not submit a statement on his 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 of the separation with a general, under honorable conditions discharge.  

4.  On 10 February 2009, the separation authority approved the conditional waiver request, 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 24 February 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, Section II, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3.   

6.  The applicant’s record of service does not contain any evidence of unauthorized absences or time lost.  However, he was counseled on two separate occasions for being AWOL.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Civil court case report indicating the applicant was convicted for burglary and battery, and received a sentence of 180 days in a county jail on 1 October 2008.

2.  Two negative counseling statements, dated 19 August 2008 and 8 September 2008, for being AWOL on two separate occasions (from 4 to 8 September 2008, and 17 July to 15 August 2008) and wrongfully using a controlled substance.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.



POST-SERVICE ACTIVITY: 

The applicant provided none.   

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.

ANALYST’S 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.  By the serious incidents of misconduct for which he was convicted by a civil court, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his civil conviction for the serious incidents of misconduct.  

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 he had good service which included his combat tour in Iraq and earning several awards.  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 serious incidents of misconduct.  Moreover, an under other than honorable conditions discharge was normal and appropriate under the regulatory guidance for the serious incidents of misconduct.  However, his record documents acts of significant achievement which supports the issuance of a general discharge rendered by the separation authority, but it does not support an upgrade to an honorable at this time.

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:  4 June 2014         Location:  Washington, DC

Did the Applicant Testify?  No

Counsel:  None

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)		AR20130015188



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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