IN THE CASE OF:  	Mr.

      BOARD DATE:  	7 April 2014

      CASE NUMBER:  	AR20130021913
___________________________________________________________________________

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 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 being able to reenlist.  He contends his discharge was the result of one NCO's opinion.  He felt his word out weighed six other NCO's who wrote letters of recommendation and character statements on his behalf, stating he should remain in the service.  He admits as a young man he made mistakes that didn't exemplify his character.  He now works as a banker and financial advisor; however, believes serving as an Army Soldier was when he was most proud.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 December 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			10 November 2004
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			A Co, 309th MI Bn, Fort Huachuca, AZ
f. Current Enlistment Date/Term:	26 September 2003, 4 years
g. Current Enlistment Service:	1 year, 1 month, 15 days
h. Total Service:			1 year, 1 month, 15 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	None
m. GT Score:				121
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			Yes, 7 November 2011

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 26 September 2003, for a period of 4 years.  He was 21 years old at the time of entry and a high school graduate.  He was serving at Fort Huachuca, AZ when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 1 year, 1 month, and 15 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 21 October 2004, 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. failed to report to his designated place of duty,

b. uttered a worthless check,

c. failed to sign out for sick call,

d. failed to keep his room in accordance with the SOP,

e. disobeyed a lawful order from an NCO on two occasions, and

f. failed to complete corrective training.

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 25 October 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 2 November 2004, 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 10 November 2004, with a characterization of service of general, under 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. 

6.  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 14 October 2004, for being absent from his appointed place of duty (040928).  The punishment consisted of extra duty and restriction for 14 days (CG).

2.  Article 15, imposed on 7 June 2004, for disobeying a lawful order from a NCO (040428).  The punishment consisted of forfeiture of $100.00 pay per month for one month (suspended), extra duty for 5 days, and restriction for 7 days (CG). 

3.  Article 15, imposed on 8 April 2004, for being disrespectful in deportment towards a Drill Sergeant/NCO (040318).  The punishment consisted of forfeiture of $278.00 pay (suspended), extra duty, and restriction for 14 days (CG).

4.  Summarized Record of Proceedings under Article 15, UCMJ, imposed on 4 March 2004, for failure to complete corrective training (040225).  The punishment consisted of extra duty and restriction for 14 days.

5.  Six letters of recommendation from NCO's describing the applicant character while in training.

6.  Eight negative counseling statements dated between 25 February 2004 and 28 September 2004, for failure to obey an order or regulation, failure to sign-out for sick call, following rules and guideline, failing of the APFT, writing of a worthless check, exceeding the maximum allowable standard for body fat percentage, and recommendation for punishment and separation from the Army.

7.  Report of Mental Status Evaluation, dated 30 September 2004, indicating the applicant was cleared for any administrative action deemed appropriated by his command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, that he now works as a banker and financial advisor.

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 documents, and issues he 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 four Articles 15, for multiple violations of the Uniform Code of Military Justice and several 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 that he was young at the time of the 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 contends he was discharged based on the opinion of one NCO and that six other NCO's wrote recommendations on his behalf.  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 discharge was based on the opinion of one individual.  In fact, the applicant’s four Articles 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, although the applicant received recommendations for retention in service from other NCO's; the separation authority was not bound by their recommendations.

7.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to reenlist.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There is no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

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: Personal Appearance	  Date: 7 April 2014   Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: None

Witnesses/Observers: None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional document:

	a.  Personal typewritten statement – 2 pages

2.  The applicant presented no additional contentions.

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

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130021913



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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