AR20140002981

IN THE CASE OF: Mr.

BOARD DATE: 30 January 2015

CASE NUMBER: AR20140002981
___________________________________________________________________________

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 his discharge is inequitable because it was based on one incident in 68 months of service with no other adverse actions.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 10 February 2014
b. Discharge received: General, Under Honorable Conditions
c. Date of Discharge: 9 August 2012
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: A Trp, 7th Bn, 10 Cav, Fort Carson, CO
f. Current Enlistment Date/Term: 16 January 2007, 6 years and 18 weeks
g. Current Enlistment Service: 5 years, 6 months, 24 days
h. Total Service: 5 years, 6 months, 24 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 19D20, Cavalry Scout
m. GT Score: NIF
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq (080309-090314) and Afghanistan (100724- 110702)
q. Decorations/Awards: ARCOM-2, AGCM, ICM-w/2CS, ACM-w/2CS, NDSM, GWOTSM, ASR, OSR-2, CAB, NATO MDL, VUA
r. Administrative Separation Board: No
s. Performance Ratings: Yes
t. Counseling Statements: None
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 16 January 2007, for a period of 6 years and 18 weeks. He was 21 years old at the time of entry and a high school graduate. His record indicates he served in Iraq and Afghanistan; achieved the rank of Sergeant/E-5; and earned several awards to include two ARCOMs, the AGCM, and the CAB. He was serving at Fort Carson, CO when separation action was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The applicants service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicants signature.

2. The DD Form 214 indicates that on 9 August 2012, the applicant was discharged under the provisions of Chapter 14, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.

3. On 2 August 2012, DA, Installation Management Command, Headquarters, United States Army Garrison, Fort Carson, Fort Carson, CO, Orders Number 215-0030, discharged the applicant from the Army effective 9 August 2012.

4. The applicants available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Discharge Orders 215-0030, dated 2 August 2012.

2. One NCOER covering the period of 1 June 2011 through 30 November 2011. The applicant was rated overall as “Marginal.”

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

None was 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 available record of service, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The applicants available record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.

3. The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. The applicant’s contention about his discharge being inequitable because it was based on one incident in 68 months of service with no other adverse action was carefully considered. However, it is unknown if this contention has merit because the facts and circumstances leading to the discharge are not contained in the service record. The burden of proof remains with the former Soldier to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration. If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the discharge packet is not available in the official record.

5. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.

6. Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus the analyst recommends the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 30 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) AR20140002981

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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