AR20140002727

IN THE CASE OF:

BOARD DATE: 14 January 2015

CASE NUMBER: AR20140002727
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the former Service member’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicants length and quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was 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 APPLICANTS REQUEST AND STATEMENT:

1. The former Service members spouse, on behalf of the former Service member, requests to upgrade the characterization of his service from under other than honorable conditions to fully honorable.

2. The spouse, on behalf of the former Service member states, in pertinent part and in effect, the charges which were the bases for his discharge were dismissed. He was an above average type of Soldier who deserves an honorable discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 7 February 2013
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 1 June 2012
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200,
Paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: HSC, 3rd Bn, 5th SF Grp (Airborne), Fort Campbell,
KY
f. Current Enlistment Date/Term: 26 April 2010, 6 years
g. Current Enlistment Service: 2 years, 1 month, 6 days
h. Total Service: 9 years, 2 months, 7 days
i. Time Lost: None
j. Previous Discharges: RA (030325-070425) / HD
RA (070426-100425) / HD
k. Highest Grade Achieved: E-6
l. Military Occupational Specialty: 18E1P, Special Forces Communications Sergeant
m. GT Score: 130
n. Education: 3 years of college
o. Overseas Service: ARCOM; AAM; AGCM-2; NDSM; ICM-4CS;
GWOTSM; NPDR-2; ASR; OSR-2; MUC; CIB
p. Combat Service: Germany, SWA
q. Decorations/Awards: Iraq (100815-110405), (050929-060915)
r. Administrative Separation Board: No, unconditionally waived
s. Performance Ratings: Yes
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the former Service member enlisted in the Regular Army on 25 March 2003, and reenlisted twice thereafter. The latter reenlistment was on 26 April 2010, for a period of 6 years. He was 23 years old at the time of entry and had three years of college. He was trained in and awarded military occupational specialty (MOS) 18E1P, Special Forces Communications Sergeant and was awarded the Special Forces Tab on 12 April 2010. He served in Iraq. He earned an ARCOM. He completed 9 years, 2 months, and 7days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the former Service members service record shows that on 29February 2012, the unit commander notified the former Service member of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconductcommission of a serious offense, specifically for the following incidents:

a. between 16 October 2011 and 3 November 2011, he knowingly returned merchandise that was fraudulently purchased by his wife, between 17 October 2011 and 28 October 2011;
b. receiving $915.30 of store credit, Non-Appropriated Funds, the property of AAFES, for returning items without a receipt to receive a store credit for the full price of the items returned (larceny, in violation of Article 121, UCMJ);
c. in purchasing those items, he used fraudulent coupons of similar or matching items, and in later returning these items for a full refund of the original ticket price, it is clear that he conspired with his wife to commit larceny (conspiracy to larceny, in violation of Article 81, UCMJ)
d. the former Service member and his wife using this fraudulent method received $1,741.91 worth of merchandise while only paying $129.12; and
e. being caught on camera drinking a $2.99 energy drink (5-Hour) in the store and leaving without paying for the drink (larceny, in violation of Article 121,UCMJ).

2. The unit commander recommended an under other than honorable conditions discharge and advised the former Service member of his rights.

3. On 1 March 2012 and 9 May 2012, the former Service member consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board and did not submit a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action and the battalion commander recommended approval of the conditional waiver (previous election of rights but later changed his election to unconditional waiver) and separation with a general, under honorable conditions discharge. The battalion commander recommended approval of the separation with an under other than honorable conditions discharge.

4. In an undated memorandum, the separation authority waived further rehabilitation and directed the former Service members discharge with a characterization of service of under other than honorable conditions.

5. The former Service member was discharged from the Army on 1 June 2012, with a characterization of service of under other than 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 an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Article 15, dated 27 February 2012, for committing larceny (111016-111103), conspiring with another to commit larceny (111017-111028), and committing larceny (111103). The punishment consisted of a reduction to the grade of E-1, forfeiture of $745 per month for two months, 14 days of extra duty and restriction, and an oral reprimand, (FG).

2. Article 15, dated 31 January 2012, for making a false official statement (120124) and failing to be at his appointed place of duty at the prescribed time (120130). The punishment consisted of a reduction to the grade of E-4, forfeiture of $1,181.55 per month for two months (suspended), 45 days of extra duty and restriction, (FG).

3. Article 15, dated 9 January 2012, for missing movement (110103), violating a lawful general order (110103), and making a false official statement (110103). The punishment consisted of a reduction to the grade of E-5, forfeiture of $500 per month for two months, and 45 days of extra duty, (FG).

4. A negative counseling statement, dated 31 January 2012, for leaving his place of duty without notifying his chain of command.

5. An MP Report, dated 4 November 2011, indicates the former Service member was the subject of an investigation for shoplifting, theft by deception, and larceny of non-appropriated funds-larceny of AAFES funds.

6. Two NCOERs rendered during the period under current review:

a. An Annual report covering the period 11 January 2011 through 10 January 2012. The former Service member was rated as Marginal and received 4/4 from the senior rater.
b. An Ext Annual report covering the period 1 May 2007 through 10 January 2011. The former Service member was rated as Marginal and received 4/5 from the senior rater.

EVIDENCE SUBMITTED BY THE FORMER SERVICE MEMBER:

The spouse, on behalf of the former Service member, provided a Certificate of Death, dated 10May 2013; the spouses civil court docket sheet and judgment order, dated 24 July 2013; two character reference/supporting letters; letter of support rendered by the former Service members mother, dated 10November 2013; letter of support rendered by the former Service members mother-in-law, dated 6November 2013 (who indicates the former Service member showed very visible signs of PTSD); ten character reference letters, dated between 24October 2013 and 29November 2013; ERB, dated 28February 2012; Permanent Orders 102-24, dated 12April 2010; Emergency Medical Technician certificated, dated 1 August 2005; Permanent Orders 215-011, dated 3August 2006; two NCOERs; three separate VA correspondence, dated 24January 2014 and 6January 2014; and CMD letter, dated 8January 2014, with a marriage certificate (Denmark).

POST-SERVICE ACTIVITY:

The spouse, on behalf of the former Service member, provided no further information.

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 former Service members request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the former Service members record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the former Service member’s discharge.

2. The record confirms that the former Service members 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 serious incidents of misconduct, the former Service member diminished the quality of his service below that meriting a fully honorable discharge. The former Service members record of service was marred by three Article 15 actions for multiple violations of the Uniform Code of Military Justice.

3. The spouse, on behalf of the former Service member, provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or sufficient evidence that the former Service members service mitigated the misconduct or poor duty performance.

4. The spouse, on behalf of the former Service member, contends that the bases for his discharge were dismissed; however, the civilian court document which indicates a dismissal of a charge would be inapplicable to the former Service members discharge as it identifies the spouse as the defendant in the case.

5. The spouse, on behalf of the former Service member, contends that he was an above average type of Soldier who deserves an honorable discharge. The former Service members 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 serious incidents of misconduct and the documented actions under Article 15 of the Uniform Code of Military Justice.

6. 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 former Service member were fully protected throughout the separation process. The character of the former Service members discharge is commensurate with his overall service record. Accordingly, the 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.

Board Determination and Directed Action

After carefully examining the former Service member’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicants length and quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 14 January 2015 Location: Washington, DC

Did the Former Service member Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 5 No Change: 0
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: General, Under Honorable Conditions
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) AR20140002727

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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