IN THE CASE OF:  	

      BOARD DATE:  	23 February 2015

      CASE NUMBER:  	AR20140020293
___________________________________________________________________________

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 general, under honorable conditions to honorable.

2.  The applicant states, in effect, he was discharged for being charged with and/or convicted of driving under the influence (DUI) in a civilian court.  His command failed to acknowledge he did not receive a DUI or a conviction of any such crime.  He was punished twice for the same offenses and issued a general, under honorable conditions discharge.  Because his DUI charge was reduced to negligent driving he deserves an honorable discharge.  He desires to receive Post 9/11 VA benefits.  He also desires to reenlist in the Army to continue serving his country.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 November 2014
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			19 August 2013
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, 4-23rd Infantry Regiment, Joint Base Lewis-						McChord, WA
f. Current Enlistment Date/Term:	28 April 2011, 3 years and 9 weeks
g. Current Enlistment Service:	2 years, 3 months, 22 days.
h. Total Service:			5 years, 9 months, 20 days
i. Time Lost:				None
j. Previous Discharges:		ARNG (071030-080107)NA									IADT (080108-080609)/UNC									ARNG (080610-090430)/NA									AD (090501-100326)/HD										ARNG (100327-110427)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11C10, Indirect Fire Infantryman
m. GT Score:				88
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (120612-130127)/Kuwait Iraq 							(090618-100308)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ACM-W/CS, ICM-W/CS 						GWOTSM, AFRM-W/”M” DEV, ASR, OSR, CIB
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 Army National Guard on 30 October 2007, for a period of 8 years.  He was 20 years old at the time of entry with a GED Certificate.  He was ordered to initial active duty training on 8 January 2008, he trained in and was awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist.  He was released from initial active duty training on 6 June 2008 with an uncharacterized discharge and returned to his unit.  He was ordered to active duty on 1 May 2009, in support of Operation Iraqi Freedom with duty in Kuwait/Iraq.  He earned several awards including an ARCOM, AGCM, and an AFRM-W/”M” DEV; and he achieved the rank of SPC/E-4.  He was released from active duty on 26 March 2010, with an honorable discharge and returned to his unit.  He was discharged from the National Guard on 27 April 2011, with an honorable discharge.  The applicant enlisted in the Regular Army on 28 April 2011, for a period of 3 years and 9 weeks and he was 23 years old. He trained in and was awarded military occupational specialty (MOS) 11C10, Indirect Fire Infantryman.  His record also shows he served a combat tour, he did not earn any awards for acts of valor or meritorious achievements; and he achieved the rank of SPC/E-4.  He was serving at Joint Base Lewis-McChord, WA, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 26 June 2013, 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.  failing to report to his appointed place of duty on multiple occasions between (110927-130325),

     b.  being involved in an alcohol related incident (130315), and 

     c.  lying to a noncommissioned officer regarding the alcohol incident.

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 26 June 2013, the applicant consulted with legal counsel (although his elections of rights indicate he waived legal counsel), was advised of the impact of the discharge action, and submitted a statement on his own behalf, which was not in the file.  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 3 July 2013, 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 19 August 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 a 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, 16 June 2013, for without authority, failing to go at the time prescribed to his appointed place of duty x 2 (130315 and 130325); and with intent to deceive, making a false official statement to a noncommissioned officer (SSG, 130415); the punishment consisted of a reduction to E-1, forfeiture of $758 pay for two months, extra duty for 45 days and restriction for 45 days (FG).

2.  An administrative General Officer Memorandum of Reprimand (GOMOR), dated 27 June 2013, for driving under the influence of alcohol.

3.  He received several negative counseling statements dated between 3 October 2011 and          18 April 2013, for failing to report several times, deceiving his chain of command, and disobeying a direct order, tardiness.

4.  A Military Police Report dated 16 April 2013, indicating the applicant was under investigation for driving under the influence of alcohol off post.

5.  DA Form 3822-R (Report of Mental Status Evaluation), dated 14 June 2013, indicating the applicant was enrolled in ASAP and was cleared for any administrative action from a behavioral health perspective in accordance with AR 635-200.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, Pierce County District Court document, and a DD Form 214.

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 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 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 GOMOR, several negative counseling statements and a military police report for driving under the influence of alcohol off post.

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 discharged for being charged with and/or convicted of driving under the influence (DUI) in a civilian court.  The record of evidence shows the applicant was discharged for being involved in alcohol related incident and not being convicted in a civilian court as he indicated on his application.

5.  The applicant further contends his command did not acknowledge him not receiving a DUI or convicted of any such crime.  The applicant submitted a court document indicating he was originally charged with DUI.  The DUI was amended to negligent driving.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the charge of DUI was false or unjust.

6.  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.

7.  The applicant contends he was punished twice for the same offenses and issued a general, under honorable conditions discharge.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial.

8.  The applicant also contends because his DUI charge was reduced to negligent driving he deserves an honorable discharge.  His personal conduct and performance of duty 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.

9.  The applicant desires to receive Post 9/11 VA benefits.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

10.  The applicant also desires to reenlist in the Army to continue serving his country.  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 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. 

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

12.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  23 February 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)		AR20140020293



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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