AR20140001468

IN THE CASE OF: Mr.

BOARD DATE: 28 January 2015

CASE NUMBER: AR20140001468
___________________________________________________________________________

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 characterization from general, under honorable conditions to fully honorable.

2. The applicant states, in effect, he feels the cause of his separation and the conditions were unjust and he was treated unfairly. He served honorably and should have remained in the US Army. Also, he feels the Army failed to realize his skills and dedication to serving and protecting freedom, justice and equality. His life has gone to shambles ever since.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 22 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 29 October 2003
d. Reason/Authority/SPD/RE: Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3
e. Unit of assignment: C Company, 2nd Battalion, 63rd Armor Regiment,
Vilseck, Germany
f. Current Enlistment Date/Term: 11 April 2002, 3 years
g. Current Enlistment Service: 1 year, 6 months, 19 days
h. Total Service: 1 year, 6 months, 19 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 19K10, M1 Abrams Armor Crewman
m. GT Score: 97
n. Education: HS Graduate
o. Overseas Service: Kosovo (021107-030726), Germany (021014-031028)
p. Combat Service: None
q. Decorations/Awards: NDSM, NATOMDL, KCM/w/BSS, ASR
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant’s record shows he enlisted in the Regular Army on 11 April 2002, for a period of 3 years. He was 20 years old at the time and a high school graduate. The applicants record does not show any significant achievements or acts of valor. When his discharge proceedings were initiated, he was stationed in Vilseck, Germany.

SEPARATION FACTS AND CIRCUMSTANCES

1. The evidence contained in the applicants service record indicates that on 16 October 2003, 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. exhibiting several instances of UCMJ violations including driving under the influence,
b. making false sworn statements, damaging property, wreckless driving, and
c. wrongful disposition of military property.

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 17 October 2003, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, if an under other than honorable conditions discharge was recommended 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 of a general, under honorable conditions discharge.

4. On 22 October 2003, 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 separated on 29 October 2003, under the provisions of Army Regulation 635-200, Chapter 14-12b for a Pattern of Misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6. The applicants record does not contain any evidence of time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD

1. The applicant’s disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

a. On 22 June 2003, making an official statement which was false (030609), without proper authority wrongfully disposed of the brush guard to his HMMWV, vehicle IN 231 (030609), wrongfully damage two US Flags in the amount of less than $100.00, the property of Kellog Brown and Root (030609), physically control a vehicle in a wanton manner by driving over a road sign (030609). His punishment consisted of reduction to E-2, forfeiture of pay in the amount of $301.00; extra duty and restriction for 14 days (CG)

b. On 5 September 2003, for operating a passenger car while impaired by alcohol (030721). His punishment consisted of reduction to Private (E-1), forfeiture of pay in the amount of $575.00 per month for two months, extra duty and restriction for 45 days (FG)

2. There are two negative counseling statements dated 5 August 2003 and 31 July 2003, for operating a motor vehicle while under the influence of alcohol and for being charged with driving under the influence and of possible legal proceedings pending against him for alleged misconduct.

3. A Military Police Report dated 31 July 2003, which indicated the applicant was the subject of an investigation for driving while impaired

4. Blotter Extract for the record dated 31 July 2003, in reference to the applicants offense of driving while impaired.

EVIDENCE SUBMITTED BY THE APPLICANT

The applicant did not provide any with the application.

POST-SERVICE ACTIVITY:

The applicant did not provide any 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 his military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant’s discharge.

2. The record confirms 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 repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicants service was marred by 2 Articles 15 for multiple violations of the Uniform Code of Military Justice and 2 negative counseling statements and a Military Police Report.

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 feels the cause of his separation and the conditions were unjust and he was treated unfairly. He served honorably and should have remained in the US Army. 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 the conditions were unjust and he was treated unfairly. In fact, the applicants two Articles 15 and negative counseling statements justify a pattern of misconduct. The applicants statements alone do not overcome the governments 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. 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.

5. The applicant further contends the Army failed to realize his skills and dedication to serving and protecting freedom, justice and equality. His life has gone to shambles ever since. Before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation. The command made an assessment of the applicant’s potential for becoming a fully satisfactory Soldier. The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

6. Records show the proper discharge and separation authority procedures were followed in this case.

7. 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: Records Review Date: 28 January 2015 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 UOTH – Under Other Than Honorable Conditions
ADRB Case Report and Directive (cont) AR 20140001468

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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