IN THE CASE OF:	Mr. 

      BOARD DATE:	13 March 2014

      CASE NUMBER:	AR20130018783
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he feels the way he was discharged was unfair because the process of his discharge as general, under honorable conditions was not what he was told.  His situation did not call for that type of discharge.  He is an outstanding citizen.  He considers himself to be very disciplined, professional, a good representation of the Armed Forces, and an excellent veteran.  With changing the characterization of his discharge, he looks forward to pursuing a new career.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	10 October 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	7 June 2011
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	HHC, 3rd Bn, 2nd Aviation Regiment (GSAB), 2nd 
			Combat Aviation Brigade, 2nd ID, Korea
	f.	Current Enlistment Date/Term:	3 February 2010, 4 years
	g.	Current Enlistment Service:	1 year, 4 months, 5 days 
	h.	Total Service:	1 year, 4 months, 5 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	15P10, Aviation Operations Specialist
	m.	GT Score:	102
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR, KDSM, 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 3 February 2010, for a period of 4 years.  He was 32 years old at the time of entry and a high school graduate.  He served in Korea.  He was trained in and awarded military occupational specialty (MOS) 15P10, Aviation Operations Specialist.  His record documents no acts of valor or significant achievement.  He completed 1 year, 4 months, and 5 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 19 May 2011, 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 of pattern of misconduct. 

2.  Based on the above, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 23 May 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on 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 26 May 2011, the separation authority 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 7 June 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 2329, Record of Trial by Summary Court-Martial, dated 18 April 2011, indicates the applicant was tried by a summary court-martial and found guilty of being disrespectful in language toward an NCO, SFC D, (110124).  The sentence consisting of reduction to the grade of E-1 and hard labor without confinement for 45 days was adjudged on 14 April 2011 and approved on 20 April 2011.

2.  DA Form 4430, DA Report of Result of Trial, provides results of the aforementioned summary court-martial.

3.  Three negative counseling statements, dated 1 November 2010, 28 April 2011, and 29 April 2011, for being insubordinate toward an NCO; disrespecting an NCO; and being recommended for involuntary separation.

4.  Memorandum for Record, dated 28 April 2011, subject: Letter of Intent, signed by the unit commander indicates the applicant was being considered for separation pursuant to chapter 14, paragraph 14-12b, pattern of misconduct, specifically for having discreditable conduct and conduct prejudicial to good order and discipline.

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.

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 pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by a summary court-martial for violation of the Uniform Code of Military Justice and 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 his discharge was unfair because he was not informed that his service would be characterized a general, under honorable conditions and his situation did not call for that type of discharge.  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 his issues.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s summary court-martial conviction and 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.  Moreover, the applicant’s separation record indicates that on 19 May 2011, he acknowledged receiving the unit commander’s notification informing him of the action being initiated to separate him for a pattern of misconduct and that the commander was recommending him for a general, under honorable conditions characterization of service.  

5.  The applicant contends his situation did not call for the type of his discharge, and considers himself to be very discipline and professional, a good representation of the Armed Forces, and an excellent veteran.  However, the rationale the applicant provided as the basis for what he believes was an unfair discharge, is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.  The service record indicates the applicant committed discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.

6.  The applicant contends that with an upgrade of his discharge, he looks forward to pursuing a new career.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

8.  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:  Personal Appearance     Date:  13 March 2014     Location:  Washington, DC

Did the Applicant Testify:  Yes

Counsel:  None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

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)		AR20130018783

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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