IN THE CASE OF:	Mr. 

      BOARD DATE:	4 June 2014

      CASE NUMBER:	AR20130015238
___________________________________________________________________________

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, his characterization of service was too
harsh for a single incident of misconduct.  The alleged incident was an
altercation with another Soldier which took place in Iraq.  He completed his
tour, returned to Germany and then had a series of medical issues which
should have resulted in a medical separation.  He also states he was neither
advised of his rights nor afforded legal counsel through the separation
process.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	3 June 2005
	d.	Reason/Authority/SPD/RE Code:	Misconduct, (AR 635-200, paragraph 14-12c, JKQ, 
			RE-3 information is not included on the DD Form 214)
	e.	Unit of assignment:	4th Engr Co, Baumholder, Germany
	f.	Current Enlistment Date/Term:	17 July 2002, 3 years, 6 months
	g.	Current Enlistment Service:	2 years, 10 months, 17 days
	h.	Total Service:	2 years, 10 months, 17 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	21B10, Combat Engineer
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Iraq (030427-040710)
	q.	Decorations/Awards:	ARCOM; NDSM; GWOTEM; GWOTSM; ASR; OSR; 
			PUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 17 July 2002, for a period of 3 years and extended this enlistment for an additional 6 months on 1 November 2002.  He was 22 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 21B10, Combat Engineer.  He served in Germany and Iraq.  He earned an ARCOM.  He completed 2 years, 10 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  In addition, the record does not contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  However, the applicant provided a State Director of VA constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 3 June 2005, the applicant was discharged for misconduct with a characterization of service of general, under honorable conditions.  However, the provisions under which the applicant was discharged, its separation and reentry codes are either illegible or left blank.  

3.  The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.  He was separated as a PFC/E-3. 

4.  The record does not contain any separation orders.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a lengthy self-authored statement; DD Form 214 for service under current review; character reference letter, dated 25 February 2013; notarized letter of support, dated 14 May 2013; and CMD letter, dated 17 July 2013.  

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he was certified as a high school basketball referee, and has never been involved in any negative incidents. 

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 and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army, and the record does not contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  However, the applicant provided a State Director of VA constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  This document identifies the reason and characterization of the discharge and the presumption of government regularity prevails in the discharge process of this case.

3.  Although the provisions under which the applicant was discharged are not included on the State Director of VA constituted DD Form 214, it does indicate he was discharged by reason of misconduct with a characterization of service of general, under honorable conditions.  The regulatory provision for misconduct would be Chapter 14, AR 635-200, paragraph 14-12c (serious offense).  Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends that his discharge was unfair because it was based on one single minor incident; he was not afforded his right to legal representation; and he was unable to perform his duties due to his medical conditions and that he should have been considered for a medical discharge.  However, it is not possible to determine if his contentions has merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the applicant to provide the appropriate documents or other evidence (i.e., discharge packet, record of his medical issues, etc.) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet this burden of proof since the evidence is not available in the official record.

5.  Furthermore, regarding his contention that the one single minor incident which caused his discharge was the only one in his entire Army career, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  Regarding his contention that he should have been medically discharged, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

7.  The applicant contends that he was having family issues, an indication that the issues may have been a factor contributing to his discharge.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance.  

8.  The applicant contends the VA diagnosed him with PTSD and other medical issues.  However, the service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

9.  The applicant contends that he had good service which included serving in Iraq and receiving several awards.  The applicant’s service accomplishments and the quality of his service prior to any 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.

10.  The applicant contends that since leaving the Army, he was certified as a high school basketball referee.  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.

11.  The third party statements provided with the application speak highly of the applicant’s performance and character, and his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity at this time.

12.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review     Date:  4 June 2014      Location:  Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  No 

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)		AR20130015238

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1