AR20140000690

IN THE CASE OF: Mr.

BOARD DATE: 15 December 2014

CASE NUMBER: AR20140000690
___________________________________________________________________________

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 APPLICANTS 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 rejoin the Army. The applicant contends the was a good Soldier and aside from his mistake he was always punctual and contributed to high OR ratings for the units equipment to maintain an Army standard of 90 percent. He believes he is a future leader and mentor. He is an experienced combat veteran that can help and complete and mission in the future.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 6 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 5 February 2011
d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200 Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: HHC, 2nd Bn, 28th IN Rgt, Germany
f. Current Enlistment Date/Term: 4 December 2008, 6 years
g. Current Enlistment Service: 2 years, 2 months, 2 days
h. Total Service: 4 years, 3 months, 17 days
i. Time Lost: None
j. Previous Discharges: ARNG-061019-070212/NA ADT-070213-070720/UNC ARNG-070721-071119/NA RA-071120-081203/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 91B10, Wheeled Vehicle Mechanic
m. GT Score: 88
n. Education: HS Graduate
o. Overseas Service: Germany
p. Combat Service: None
q. Decorations/Awards: ARCOM, AAM-2, MUC, ICM-w/CS, NDSM GWOTSM, ASR, OSR
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 (ARNG) on 19 October 2006, for a period of 8 years. On 19 November 2007, the applicant was discharged from the ARNG pending enlistment in the Regular Army. The applicant enlisted in the Regular Army on 20 November 2007, for a period of 8 years. On 4 December 2008, he reenlisted for a period of 6 years. He was 24 years old at the time of reenlistment and a high school graduate. His record indicates he served in Germany; earned several awards to include the ARCOM and two AAMs, and achieved the rank of SPC/E-4. He was serving in Germany when his discharge was initiated. He completed a total of 4 years, 3 months, and 17 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 15 December 2010, 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 (serious offense). Specifically for the following offenses:

a. receiving a Field Grade Article 15 for disobeying a lawful general regulation by operating a motor vehicle without insurance (090515), driving under the influence on (100530), and failure to pay just debt on (100413), and

b. driving without his license and allowing a local national drive his vehicle without it being cleared through customs.

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 15 December 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit 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 21 January 2011, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 5 February 2011, 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), a Separation Program Designator code (SPD) of JKQ and a RE code of 3.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. A Military Police Report, dated 31 May 2010, which indicates the applicant was the subject of investigation for drunken driving, operating a motor vehicle without valid insurance, and failure to obey an order or regulation.

2. A General Officer Memorandum of Reprimand (GOMOR), dated 2 August 2010, for operating a motor vehicle on a public road while under the influence of alcohol, this being his second DUI.

3. Article 15, imposed on 23 August 2010, for failure to obey a lawful general regulation by wrongfully driving without vehicle insurance (100530), driving while intoxicated with a BAC equal to or exceeding 0.10 (100530), making and uttering a check in the amount more or less than $1,000.00 for the purpose of receiving cash (100413), and making and uttering a check in the amount more or less than $5,000.00 for payment to another Soldier (100413). Punishment consisted of a reduction to the grade of E-1, forfeiture of $723.00 pay per month for two months, and extra duty and restriction for 45 days (FG).

4. Four negative counseling statements dated between 28 October 2010 and 1 December 2010, for recommendation for separation, misconduct involving a DWI, revocation of his civilian driver’s license and driving privileges, and letting a local national drive his car without driving clearance through customs.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a letter of recommendation, dated 7 February 2012.

POST-SERVICE ACTIVITY:

None were provided with the 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 members 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 Soldiers separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The record confirms that the applicants 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, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicants record of service was marred by his Article 15 for multiple violations of the Uniform Code of Military Justice, GOMOR for operating a motor vehicle on a public road while under the influence of alcohol, and the receiving of four negative counseling statements.

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

4. The applicant contends overall he was a good Soldier. The applicants service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incident of misconduct and by the negative counseling statements.

5. Furthermore, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct (serious offense). It appears the applicants generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.

6. The applicant expressed his desire for an upgrade of his for the purpose of being able to rejoin the Army. 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.

7. 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 applicants discharge is commensurate with his overall service record.

8. 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: 15 December 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

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) AR20140000690

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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