AR20140003218

IN THE CASE OF: Mr.

BOARD DATE: 23 January 2015

CASE NUMBER: AR20140003218
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable.

2. The applicant states, in effect, his discharge was inequitable because it was based on a one isolated incident in his 29 months of service with no other adverse action. He states, he was a model Soldier that never had problems until he made this one mistake that did not occur on a military installation. He states, he was only trying to protect another Soldier when civilians tried to harm them.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 18 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 12 February 2010
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200,
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment: Rear Detachment, 67th Expeditionary Signal
Battalion, Fort Gordon, GA
f. Current Enlistment Date/Term: 18 September 2007/2 years, 25 weeks
g. Current Enlistment Service: 2 years, 4 months, 15 days
h. Total Service: 2 years, 4 months, 15 days
i. Time Lost: 9 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 91D10, Power-Generation Equipment Repairer
m. GT Score: 94
n. Education: HS Graduate
o. Overseas Service: Korea
p. Combat Service: None
q. Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR
r. Administrative Separation Board: NA
s. Performance Ratings: NA
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 18 September 2007, for a period of 2 years and 25 weeks. He was 20 years old at the time of entry and a high school graduate. He served in Korea and did not earn any significant awards. He completed 2 years, 4 months, 15 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Gordon, GA.

SEPARATION FACTS AND CIRCUMSTANCES:

1. On 15 December 2009, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for committing an aggravated assault upon an individual with a dangerous weapon, a .40 caliber handgun which was concealed in his waistband, initiating a physical assault against the victim and wrongfully and unlawfully discharging a weapon during an assault.

2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3. On 5 January 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in his own behalf (NIF). 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 26 January 2010, the separation authority waived further rehabilitation efforts and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was separated on 12 February 2010, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.

6. The applicant’s record shows he was AWOL during the period 3 February 2010 through 12 February 2010. His mode of return is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. A DA Form 4187 (Personnel Action), dated 5 February 2010, changed the applicants duty status from present for duty to confinement by civilian authorities.

2. One negative counseling statement dated 20 October 2009, for involuntary separation under the provisions of AR 635-200, Chapter 14-12c.

3. DA Form 3822-R (Report of Mental Status Evaluation), dated 24 September 2009, reflects the applicant had clear and normal thought process, was mentally responsible, and had no psychiatric disease or defects.

4. An MP Report dated 15 July 2009, that indicates the applicant was the subject of an investigation for aggravated assault-using a handgun (off post) and false report of a crime.

5. DA Form 4833 (Commanders Report of Disciplinary or Administrative Action), reflects the applicant had three offenses of aggravated assault- using a handgun, possession of a firearm during the commission of a crime, and making a false report of a crime.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 27 January 2014 and a DD Form 214.

POST-SERVICE ACTIVITY:

The applicant did not provide any in support of his 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, his military records, 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. The applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicants record of service was marred by a negative counseling statement and a arrest for aggravated assault-using a handgun and false report of a crime.

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 the incident that caused his discharge was the only one in his 29 months of service. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

5. The records show the proper discharge and separation authority procedures were followed in this case.

6. 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: 23 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) AR20140003218

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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