IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 May 2014

      CASE NUMBER:  	AR20130015530
___________________________________________________________________________

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

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of using his GI Bill benefits.  He contends he was discharged for a one time incident and believes his punishment was too severe; he was defending himself which the court agreed, and dismissed all charges upon his completion of community service and anger management.  He contends he received no rehabilitation training or Article 15s prior to or after the incident.  He completed 90 hours of community service which he did on his time.  He takes responsibility for his actions; however, he believes the action to separation him was severe for only being in trouble for the first time.  The incident was not his best moment and does not describe him as a person. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 August 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			4 October 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			567th Inland Cargo Transfer Company, 53rd 							Transportation Battalion, Joint Base Langley-Eustis, 						VA
f. Current Enlistment Date/Term:	22 July 2009, 5 years and 18 weeks
g. Current Enlistment Service:	3 years, 2 months, 13 days
h. Total Service:			3 years, 2 months, 13 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, GWOTSM, KDSM, NPDR, ASR, OSR
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 22 July 2009, for a period of 5 years and         18 weeks.  He was 22 years old at the time of entry and a high school graduate.  His record indicates he served in Korea; achieved the rank of SPC/E-4; and earned several awards to include an AAM.  He was serving at Fort Eustis, VA, when separation action was initiated.  He competed 3 years, 2 months, and 13 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 July 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), for the following offenses:

a. being arrested and charged with pointing/brandishing a firearm during a vehicle accident (111211),
b. at a criminal court hearing on (120213) assault charges were continued until (130213)
c. was convicted or reckless driving, sentenced to 50 hours of community service and recommended for anger management counseling,
d. on two occasions (110906 and 120103) failed to report for duty or corrective training at the appointed place and time, 
e. knowingly and intentionally chose not to correctly wear his uniform by wearing only a tan t-shirt, ACU trousers, and shower shoes while at an off post establishment (110831).

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 17 July 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 12 September 2012, the separation authority in a memorandum indicated he did not find the applicant's disability the cause or substantial contributing cause of his pointing/brandishing a firearm during a vehicle accident, assault and reckless driving or that other circumstance of his case warrant disability processing instead of further processing for administrative separation IAW AR 635-40.  Therefore he directed continued processing under the provisions of AR 635-200, Chapter 14-12c.

5.  On 12 September 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
6.  The applicant was discharged from the Army on 4 October 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A warrant of arrest-misdemeanor (state), dated 11 December 2011, firearm/etc; pointing/brandishing.

2.  Hampton-Newport News Criminal Justice Agency pretrial services & community corrections documents.

3.  PEB Referral Transmittal Documents and Medical Evaluation Board Proceedings, dated   29 May 2012.

4.  Seven negative counseling statements dated between 31 August 2011 and 11 April 2012, pertaining to knowingly and willingly choosing to disregard AR 670-1, failing to be present for corrective duty, failing to keep his command informed, not being at his appointed place of duty, flagging action, initiation of separation action under the provision of Chapter 14-12c.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; copy of an initial report reference his arrest for brandishing a fire arm, a self-authored statement, character reference letter, email documents explaining rulings of the court, and a copy of his DD Form 214 for the period of service under review.

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.

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, 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his arrest for pointing/brandishing a firearm during a vehicle accident;
his conviction for reckless driving; failing to report for duty or corrective training at the appointed place and time; and, not correctly wearing his uniform.

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 the charges that were pending against him were dropped; therefore he believes separation was a severe action.  The evidence of record shows the actions that were pending against the applicant, i.e. brandishing a firearm was dismissed contingent on his staying out of trouble for one year, and the charge of reckless driving, the applicant pleaded guilty to which he was fined $2,500.00 with $1,900.00 suspended, 60 days in jail with all 60 days suspended upon his two years of good behavior.

5.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts without regard to suspension or probation. 

6.  The applicant contends the incident that caused his discharge was the only one in his entire Army career.  Even though the applicant claims that his offense was a one time offense, the record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct, expected of Soldiers in the Army.  The applicant's numerous incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.

7.  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 incident of misconduct and by the negative counseling statements.

8.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to receive his GI Bill benefits.  However, the Board does not grant relief for the purpose of gaining educational benefits under the Post-9/11 or Montgomery GI Bill.

9.  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.   

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

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  7 May 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)		AR20130015530



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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