IN THE CASE OF:  	

      BOARD DATE:  	24 August 2015

      CASE NUMBER:  	AR20140019268
___________________________________________________________________________

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 of Issues 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, there was no internal investigation to determine the true facts of both Articles 15 and the second Article 15 proved he was innocent.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 November 2014
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			11 February 2013
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			Supply and Transportation Troop, Regimental 							Support Squadron, Fort Irwin, CA
f. Current Enlistment Date/Term:	9 March 2011, 3 years and 23 weeks
g. Current Enlistment Service:	1 year, 11 months, 3 days
h. Total Service:			2 years, 3 months, 27 days
i. Time Lost:				None
j. Previous Discharges:		ARNG (101015-110308)/HD
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92W10, Water Treatment Specialist
m. GT Score:				119
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Army National Guard on 15 October 2010, for a period of 8 years.  He was 21 years old at the time of entry and a HS Graduate.  He was discharged from the National Guard on 8 March 2011 with an honorable discharge.  The applicant enlisted in the Regular Army on 9 March 2011 for a period of 3 years and 23 weeks.  He trained in and was awarded military occupational specialty (MOS) 92W10, Water Treatment Specialist.
His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of PFC/E-3.  He was serving at Fort Irwin, California, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 20 December 2012, 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.  being disrespectful in language to SSG A (121105),

     b.  failing to go at the time prescribed to his appointed place of duty x 2 (121105, 111208),

     c.  disobeying a lawful general regulation, by wrongfully traveling outside the 250 mile radius (120920), and

     d.  unlawfully slapping his wife in the face, pulling her hair and choking her from behind (120920).

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 18 January 2013, the applicant was afforded the opportunity to consult with legal counsel; however, he did not execute, sign his elections of rights or submit any matters on his own behalf.  In accordance with AR 635-200, paragraph 2-2d (5)e(3) states by the applicant’s failure to respond as to the waiver of his rights, such declination constituted a waiver of his rights in paragraph 6,7, 8 and 9 of the notification letter.  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.  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 11 February 2013, 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 service record does not contain any evidence of unauthorized absences or time lost. 




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15 dated, 23 October 2012, for disobeying a lawful general regulation, by wrongfully traveling outside the 250 mile radius (120920), and unlawfully slapping his wife in the face, pulling her hair and choking her from behind (120920); the punishment consisted of a reduction to E-1, forfeiture of $745 pay for two months (suspended), and extra duty for 22 days, (FG).

2.  On 20 November 2012, the suspension of punishment was vacated for the new offenses of failing to go at the time prescribed to his appointed place of duty (121105); and being disrespectful in language to SSG A (121105).

3.  He received a counseling statement, dated 9 March 2011, regarding his contractual options as a participant in the Army National Guard active first program/active first enlistment option Pilot Program contract and several negative counseling statements, dated 8 December 2011 and 19 November 12, for failing to report, assaulting or willfully disobeying a commissioned officer, insubordinate conduct, failing to obey an order or regulation, assault, domestic violence, disobeying a lawful order, and a separation counseling for Chapter 14-12b. 

4.  A Military Police Report (partial), dated 21 September 2012, with a sworn statement indicating the applicant was under investigation for assaulting his wife.

5.  DA Form 3822-R (Report of Mental Status Evaluation), dated 7 December 2012, indicating the applicant was diagnosed with an adjustment disorder.  He also was experiencing symptoms of anxiety and depression.  He understood the difference between right and wrong and the consequences of his actions.  He was psychologically cleared to participate in administrative proceedings.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, two Family Advocacy Program letters, two support statements, news article, a DD Form 214 and a DA Form 4856 (Developmental Counseling Form, two pages).

POST-SERVICE ACTIVITY: 

The applicant did not provide any information with his 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 OF ISSUES:

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 issues and documents 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 of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15, a vacation of punishment, several negative counseling statements, and a partial military police report for assaulting his wife.

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 there was no internal investigation to determine the true facts of both Articles 15, and the second Article 15 proved he was innocent.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  The applicant’s statement alone does 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 under review.

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.

6.  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:  24 August 2015   	Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

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:  	No Change
Change RE Code to:  			No Change
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)		AR20140019268



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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