IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 December 2013

      CASE NUMBER:  	AR20130020655
___________________________________________________________________________

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 his general, under honorable conditions discharge be upgraded to honorable.  

2.  The applicant states, in effect, he did not receive adequate counsel that was provided by the U.S. Army.  To avoid any bias, he attempted to obtain counsel by a defense JAG officer from another post and was unsuccessful.  He believes his assigned JAG officer may have been influenced by the chain of command at Fort Rucker to provide a mediocre defense.  He is asking for a review based on, “did the punishment fit the crime”?  He feels alternatives such as; punishment, rehabilitation, and counseling were overlooked by his command.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			31 August 2010
d. Reason/Authority/SPD/RE Code:	Unacceptable Conduct, AR 600-8-24, 								paragraph 4-2b, JNC, NA
e. Unit of assignment:			B Co Student, 1-145th Aviation Regiment, 1st 							Aviation Brigade, Fort Rucker, AL
f. Current Enlistment Date/Term:	16 January 2008, 6 years
g. Current Enlistment Service:	2 years, 7 months, 15 days
h. Total Service:			9 years, 2 month, 6 day
i. Time Lost:				None
j. Previous Discharges:		USMC (010625-060624)/NA									USMCR (060625-071119)/NA									RA (071120-080115)/HD					
k. Highest Grade Achieved:		WO-1
l. Military Occupational Specialty:	003A0, Student
m. GT Score:				NA
n. Education:				Associate’s Degree
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq/Afghanistan (specific dates not in file, prior 						service)
q. Decorations/Awards:		NDSM, ICM-W/CS, ACM-W/CS, GWOTSM, ASR, 						NSSDR, NUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No





SUMMARY OF SERVICE:

The applicant enlisted in the US Marine Corps on 25 June 2001, the period of service is not in the file.  He was 18 years old and was discharged on 24 June 2006; the characterization of service is not in the file.  He was transferred to the Marine Corps Reserve after his active duty service.  His record also shows that he served two combat tours, but did not earn any awards for acts of valor or meritorious achievements; and he achieved the rank of SGT/E-5.  He was appointed as a Warrant Officer and incurred a 6 year period of service and was ordered to active duty on 16 January 2008.  He was scheduled to attend Warrant Officer Candidate School and was 24 years old.  He was serving at Fort Rucker, AL when the separation action was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 22 February 2010, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraphs 4-2b(5) and (8), AR 600-8-24, by reason of acts of personal misconduct and conduct unbecoming of an officer.  Specifically for the following offenses:

     a.  detonating fireworks in several mailboxes in the housing area on Fort Rucker; the military police observed fireworks wrappers on the floorboard of his vehicle and a search of his vehicle revealed several packages of fireworks (080730),

     b.  dumping liquid from water barrels near his rented moving truck, he previously drove the truck loaded with four filled 1,000 liter water barrels to a weigh station and obtained a weigh ticket; he stated he knowingly intended to use the fraudulent weigh ticket to seek reimbursement from the United States Government for a Do-It-Yourself (DITY) move and had he been successful, he would have been overpaid approximately $3,289.61 for that move (091208).

2.  The applicant was directed to show cause for retention in the Army.  He was advised that he could submit a sworn or unsworn statement, submit a rebuttal statement, submit a request for resignation in lieu of elimination, for retirement in lieu of elimination, appear before an Army grade determination review board, or request appearance before a Board of Inquiry (BOI). 

3.  On 12 May 2010, the applicant appeared with counsel before a BOI (Show Cause Board).  The Board recommended separation from the US Army with an under other than honorable conditions discharge.  

4.  On 2 June 2010, the Commander, DA, HQS, U.S. Army Aviation Center of Excellence, Fort Rucker, AL, recommended approval of the applicant's elimination from the Service under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24, with an under other than honorable conditions discharge and approved the findings and recommendations of the BOI. 

5.  On 27 July 2010, the DA Board of Review for Eliminations recommended the applicant’s elimination action be accepted with issuance of a general, under honorable conditions discharge.

6.  On 28 July 2010, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Board of Review and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

7.  The applicant was discharged from the Army on 31 August 2010, with a characterization of service of general, under honorable conditions, under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24, for unacceptable conduct.

8.  The applicant’s service record does not contain any evidence of unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains an administrative General Officer Memorandum of Reprimand (GOMOR), dated 11 January 2010 for attempting to defraud the United States.

2.  A DA Form 1059 (Service School Academic Evaluation Report), dated 12 November 2009, for achieving course standards in the IERW/UH-60 Track Class.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not submit any with his application.

REGULATORY AUTHORITY:

1.  Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

2.  AR 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.

3.  A general under honorable conditions characterization of service will normally be issued to an officer when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.

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

2.  The record confirms 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 Army officers.  It brought discredit on the Army and was prejudicial to good order and discipline.  By his misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  

3.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance.

4.  The applicant contends he did not receive adequate counsel that was provided by the U.S. Army, to avoid any bias he attempted to obtain counsel by a defense JAG officer from another post and was unsuccessful; he believes his assigned JAG officer may have been influenced by the chain of command at Fort Rucker to provide a mediocre defense; and he is asking for a review based on did the punishment fit the crime?  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 defense counsel was inadequate.

5.  Further, 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.

6.  The applicant also contends he feels alternatives such as; punishment, rehabilitation, and counseling were overlooked by his command.  AR 600-8-24, paragraph 4-1 states, an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated

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

8.  Therefore, the reason for discharge and characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review    Date:  13 December 2013    Location:  Washington, DC

Did the Applicant Testify:  NA 

Counsel:  No

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)		AR20130020655



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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