IN THE CASE OF:  	Mr. 

      BOARD DATE:  	20 June 2014

      CASE NUMBER:  	AR20130017187
___________________________________________________________________________

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 discharge from other than honorable conditions to honorable or general, under honorable conditions.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to seek new employment.  The applicant contends he was young and immature at the time of discharge and that his misconduct was the result of his anger with his command for trying to deploy him.  He injured his back during training for deployment and was told by a doctor he should not deploy until his injured back had healed.  He believes his command did not care and tried to deploy him anyway.  He believes his misconduct was uncalled for; however, he was very worried about his injuries.  He is very sorry for his misconduct.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 September 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			13 August 2003
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			E Co, 187th IN Rgt (P), Fort Campbell, KY
f. Current Enlistment Date/Term:	29 October 2002, 3 years
g. Current Enlistment Service:	9 months, 15 days
h. Total Service:			9 months, 15 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				90
n. Education:				HS Graduate
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 29 October 2002, for a period of 3 years.  He 
was 22 years old at the time of entry and a high school graduate.  He was serving at Fort Campbell, KY when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 9 months and 15 days of active duty service. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 23 July 2003, 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 offenses:

a. disobeying a lawful order to report to post guard mount (030405 and 030422);

b. failing to go to his appointed place of duty x 2 (030531 and 030601);

c. disobeying a lawful command from a superior commissioned officer to perform extra duty for 30 days;

d. disobeying an order from a superior commissioned and senior noncommissioned officer and breaking restriction.

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 25 July 2003, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, 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 with an under other than honorable conditions discharge.  

4.  The applicant's separation packet also contains an undated memorandum signed by the unit commander recommending approval with a general, under honorable conditions discharge.

5.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

6.  The applicant was discharged from the Army on 13 August 2003, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

7.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 13 May 2003, for disobeying a lawful order from a superior noncommissioned officer x 2 (030422 and 030405).  The punishment consisted of reduction to the grade of E-1, forfeiture of $575.00 (suspended), and extra duty and restriction for 30 days (FG). 

2.  A Record of Supplementary Action under Article 15, UCMJ, dated 11 June 2003, which vacates the suspension of punishment of forfeiture of $575.00 imposed on 13 May 2003, for failure to go at the time prescribed to his appointed place of duty x 4 (030516 x 3 and 030517) and breaking restriction (030517).

3.  Article 15, imposed on 23 June 2003, for failure to go at the time prescribed to his appointed place of duty x 2 (030531 and 030601) and disobeying a lawful command from a superior commissioned officer (030601).  The punishment consisted of forfeiture of $575.00 pay for two months, and extra duty for 45 days, and restriction for 60 days (FG).

4.  Four negative counseling statements dated between 19 May 2003 and 11 June 2003, for failure to be at his appointed place of duty and failure to obey an order issued by a field grade officer.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None 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.

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 document 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 pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable or general, under honorable conditions discharge.  The applicant’s record of service was marred by two Article's 15 for multiple violations of the Uniform Code of Military Justice 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 he was young and immature at the time of discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant also contends his discharge was the result of his injury during training.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his command acted against the recommendation of a doctor the applicant was receiving treatment from.  In fact, the applicant’s Article's 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

6.  Furthermore, the applicant 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 before committing the misconduct which led to the separation action under review.

7.  The applicant expressed his desire for an upgrade of his for the purpose of being able to seek new employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

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.

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:  20 June 2014        Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

Witnesses/Observers:  No

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)		AR20130017187



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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