IN THE CASE OF:  	

      BOARD DATE:  	9 March 2015

      CASE NUMBER:  	AR20150000453
___________________________________________________________________________

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 notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s testimony.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was both proper and equitable, and voted not to change it.




      
      
      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 plans to reenlist in the armed forces as soon as possible; and serve with distinction as long as he is physically and mentally able.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		24 December 2014
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			15 May 2014
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			530th Engineer Company, 92nd Engineer Battalion 						Fort Stewart, GA
f. Current Enlistment Date/Term:	2 January 2013, 3 years and 17 weeks
g. Current Enlistment Service:	1 year, 4 months, 14 days
h. Total Service:			1 year, 4 months, 14 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	12B10, Combat Engineer
m. GT Score:				123
n. Education:				Master’s Degree
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
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 2 January 2013, for a period of 3 years and       17 weeks.  He was 29 years old at the time of entry with a master’s degree.  He was trained in and awarded military occupational specialty (MOS) 12B10, Combat Engineer.  His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of SPC/E-4.  He was serving at Fort Stewart, Georgia, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 8 April 2014, 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 misconduct-commission of a serious offense; specifically, for the following offenses:

     a.  failing to report to place of duty (140327),

     b.  disrespecting a noncommissioned officer x 2 (140327 and 130922),

     c.  driving while intoxicated (130921), 

     d.  being disrespectful in language towards a commissioned officer (130830), and

     e.  treating a noncommissioned officer with contempt (130826).

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 9 April 2014, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his own behalf (which is not contained in the available record).  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 29 April 2014, 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 15 May 2014, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and a RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 2 October 2013, for behaving with disrespect toward 2LT C, his superior commissioned officer (130830); treating with contempt a noncommissioned officer (SGT E, 130826); and being disrespectful in language towards a non-commissioned officer (SSG K, 130922); the punishment consisted of a reduction to E-1, forfeiture of one half months pay for two months, extra duty and restriction for 45 days, see Article 15 worksheet (FG).

2.  A Military Police Report dated 22 September 2013, indicating the applicant was under investigation for driving under the influence of alcohol off post.

3.  A Georgia Traffic Citation, Hinesville Police Department indicating the applicant was charged with driving under the influence of alcohol.

4.  An administrative General Officer Memorandum of Reprimand (GOMOR), dated 1 October 2013, for driving while intoxicated with a blood alcohol content of .228 percent.

5.  A memorandum for record, suspension of installation driving privileges, indicating the applicant’s on post driving privileges were suspended for one year.

6.  DA Form 3822-R (Report of Mental Status Evaluation), dated 21 February 2014, indicating the applicant was diagnosed with an adjustment disorder with depressed mood, by history; alcohol dependence, by history.  Based on the findings the applicant met retention standards and was psychiatrically cleared for any administrative action.  The applicant was responsible for his behavior, could distinguish right from wrong and possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings.

7.  He received several negative counseling statements dated between 5 September 2013 and 27 March 2014, for disrespecting a noncommissioned officer, disrespecting an officer, receiving a DUI, being considered for Chapter 14 separation, and refusing to come to work.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, (two pages), several DA Forms 4856 (Developmental Counseling Statement).

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 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 misconduct (serious offense), 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 military police report, a police department citation, a GOMOR, suspension of driving privileges, and several negative counseling statements.

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

4.  The applicant contends, he plans to reenlist in the armed forces as soon as possible; and serve with distinction as long as he is physically and mentally able.  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.  A 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. 

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

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

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 notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s testimony.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was both proper and equitable, and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date:  9 March 2015    Location:  Washington, DC

Did the Applicant Testify:  Yes

Counsel:  No

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents, and 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:  3	No Change:  2
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:  		Yes
Change Characterization to:  		Honorable
Change Reason to:  			No Change
Change RE Code to:  			No Change
Grade Restoration to:  			NA
Change Authority for Separation:  	No Change
Other:						NA

SECRETARIAL REVIEWING AUTHORITY (SRA):

Upon review, the Secretarial Reviewing Authority adopted the Board President’s recommendation to overturn the Board’s decision.  The applicant failed to provide sufficient documentation to support your contentions and found his testimony not to be creditable to overcome the presumption of government regularity.  

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)		AR20150000453



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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