AR20140002143

IN THE CASE OF: Mr.

BOARD DATE: 7 January 2015

CASE NUMBER: AR20140002143
___________________________________________________________________________

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 further his education through the use of his GI Bill benefits. He contends he served in Iraq.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 27 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 29 January 2007
d. Reason/Authority/SPD/RE: Pattern of Misconduct, AR 635-200, Chapter 14, paragraph 14-12b, JKA, RE-3
e. Unit of assignment: E Company, 1st Battalion, 101st Aviation Regiment,
101st Combat Aviation Brigade, 101st Airborne Division (Air Assault), Fort Campbell, KY
f. Current Enlistment Date/Term: 1 October 2004, NIF
g. Current Enlistment Service: 2 years, 3 months, 29 days
h. Total Service: 2 years, 3 months, 29 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 92W10, Water Treatment Specialist
m. GT Score: 81
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Kuwait/Iraq (050904-060908)
q. Decorations/Awards: ICM, 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 Regular Army on 1 October 2004, for an unknown period of time. He was 20 years old at the time of entry and a high school graduate. He was serving at Fort Campbell, KY when his discharge was initiated. His record indicates he served in Kuwait/Iraq. He completed a total of 2 years, 3 months, and 29 days of active military service. His records indicate he enlisted in the Army National Guard on 9 January 2009, for a period of 6 years. He is currently pending assignment to the USAR Control Group (Reinforcement), with an effective dated of 8 January 2015.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 22 December 2006, 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. receiving a Company Grade Article 15 (051006), for failing to report to his appointed place of duty at the time prescribed on three separated occasions and disrespecting a noncommissioned officer,

b. receiving a Company Grade Article 15 (060517), for failing to report to his appointed place of duty at the time prescribed on five separate occasion, disrespecting a noncommissioned officer on four separate occasions, and being derelict in the performance of his duties,

c. receiving a Field Grade Article 15 (060618), for failing to report to his appointed place of duty at the time prescribed, willfully disobeying a noncommissioned officer, and being derelict in the performance of his duties on two separate occasions, and

d. receiving a Company Grade Article 15 (060802), for violating a lawful written order.

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 28 December 2006, the applicant was given the opportunity to consult with legal counsel; however, the applicant waived his right to legal counsel 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 10 January 2007, 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 21 March 2012, 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 applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Article 15, imposed on 6 October 2005, for failing to report to his appointed place of duty at the time prescribed on three separated occasions (050406, 050511, and 050520) and disrespecting a noncommissioned officer (050408). The punishment consisted of reduction to the grade of E-2, forfeiture of $323.00 (suspended), extra duty and restriction for 14 days, and an oral reprimand (CG).

2. Article 15, imposed on 17 May 2006, for failing to report to his appointed place of duty at the time prescribed on five separate occasion (060412, 060412, 060421, 060430, and 060504), disrespecting a noncommissioned officer in language on four separate occasions (060322, 060322, 060327, and 060419), disrespectful in language and deportment toward a noncommissioned officer, and failing to obey a lawful order from a noncommissioned officer (060326). The punishment consisted of reduction to the grade of E-2, forfeiture of $333.00 pay, extra duty for 14 days, and oral reprimand (CG).

3. Article 15, imposed on 18 June 2006, for failing to report to his appointed place of duty at the time prescribed (060528), disrespectful in deportment and language toward a noncommissioned officer(060601), willfully disobeying an lawful order from a noncommissioned officer (060601), and being derelict in the performance of his duties on two separate occasions (060527 and 060528). The punishment consisted of reduction to the grade of E1 (suspended), forfeiture of $500.00 (suspended), extra duty for 30 days, and an oral reprimand (FG).

4. Article 15, imposed on 2 August 2006, for violating a lawful written order between (060526 and 060710). The punishment consisted of reduction to the grade of E1, forfeiture of $297.00 pay, and extra duty and restriction for 14 days (CG).

5. Several negative counseling statements, dated between 10 September 2005 and 13 October 2006, for disobeying a direct order from a noncommissioned officer, insubordinate conduct, failure to obey order or regulation, provoking speeches or gestures, failure to be in the correct uniform for physical fitness training, leaving his weapon unattended and unsecured, late for work, and disrespect to a noncommissioned officer.

6. Article 15-6 Report of Investigation, dated 29 June 2006, with allied statements in reference to the applicant’s alleged sexual assault of a PFC.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a DD Form 214 for the period of service under review and a DD Form 214 for a period of post service.

POST-SERVICE ACTIVITY:

The applicant’s record shows he enlisted in the Army National Guard on 9 January 2009, for a period of 6 years. He is currently pending assignment to the USAR Control Group (Reinforcement), with an effective dated of 8 January 2015.

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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicants record of service was marred by four Articles 15 for multiple violations of the Uniform Code of Military Justice and several 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 he had good service to include a deployment to Iraq. However, by regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of pattern of misconduct. It appears the applicants generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge.

5. The applicants post-service accomplishments have been noted as shown on his DD Form 214 for the period 5 December 2009 through 31 August 2010. However, in review of the applicants entire service record and the reasons for the discharge, these accomplishments did not overcome the reason for discharge and characterization of service granted.

6. The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to further his education through the use of his GI Bill benefits. However, 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.

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 at the time was 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: 7 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 UOTHC – Under Other Than Honorable Conditions

ADRB Case Report and Directive (cont) AR20140002143

Page 7 of 7 pages

ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

1