AR20160005711

1. Applicants Name:
a. Application Date: 3 March 2016

b. Date Received: 15 March 2016

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general, under honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, he was discharged for being charged and or convicted of driving under the influence (DUI) and for being late to staff duty. He notified his command that he did not receive a DUI; he was charged with negligent driving, but his command failed to acknowledge this. He received punishment under the UCMJ for both incidents, which resulted in a loss of rank. He was punished twice for the same offenses and given a general discharge. At the time of these charges, he was undergoing the reenlistment process. When going through the process of the UCMJ and his discharge, he asked to have a lawyer present prior to signing and documentation, yet he was not afforded the opportunity. He states the reasons for his discharge were unjust.

In a personal appearance hearing conducted at Arlington, VA on 12 September 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason/Authority/Codes/Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General, Under Honorable Conditions

b. Date of Discharge: 19 August 2013

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 26 June 2013

(2) Basis for Separation: The applicant was informed of the following reasons: Failed to be at his appointed place of duty on multiple occasions between 27 September 2011 and 25 March 2013; and, for being involved in an alcohol related incident on or about 15 march 2013 and lied to a noncommissioned officer about the incident.

(3) Recommended Characterization: General, Under Honorable Conditions

(4) Legal Consultation Date: 26 June 2013 (waived representation by counsel after consulting with the senior defense counsel)

(5) Administrative Separation Board: NA

(6) Separation Decision Date/Characterization: 3 July 2013 / General, Under Honorable Conditions

4. SERVICE DETAILS:

a. Date/Period of Enlistment: 28 April 2011 / 3 years, 9 weeks

b. Age at Enlistment/Education/GT Score: 23 / GED / 88

c. Highest Grade Achieved/MOS/Total Service: E-4 / 11C10, Indirect Fire Infantry / 5 years, 9 months, 13 days

d. Prior Service/Characterizations: ARNG, 30 October 2007 – 7 January 2008 / NA
IADT, 8 January 2008 – 6 June 2008 / UNC
ARNG, 7 June 2008 – 31 April 2009 / NA
AGR, 1 May 2009 – 26 March 2010 / HD
ARNG, 27 March 2010 – 27 April 2010 / NA

e. Overseas Service/Combat Service: SWA / Iraq (18 June 2009 – 8 March 2010), Afghanistan (12 June 2012 – 27 January 2013)

f. Awards and Decorations: ACM w/CS, ICM w/CS, ARCOM, AGCM, NDSM, GWTSM, ASR, OSR, AFRM w/M Device, CIB

g. Performance Ratings: NA

h. Disciplinary Action(s)/Evidentiary Record:

Numerous DA Forms 4856 (Developmental Counseling), dated between 3 October 2011 and 18 April 2013, for: Failing to report to his appointed place of duty at time prescribed; failing to obey a lawful order; deceiving chain of command; and, tardiness.

FG Article 15, dated 4 May 2013, for failing to go at the time prescribed to his appointed place of duty (on or about 25 March 2013); and, for making a false official statement (on or about
15 April 2013). The punishment consisted of a reduction to E-1, forfeiture of $758.00 pay per month for two months, and extra duty and restriction for 45 days.

General Officer Memorandum of Reprimand (GOMOR), dated 27 June 2013, for DUI (15 March 2013).

i. Lost Time: None

j. Diagnosed PTSD/TBI/Behavioral Health: DA Forms 3822 (Report of Mental Status Evaluation), dated 14 June 2013, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with Alcohol abuse (Axis I).

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with all listed enclosures.

6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application.

7. REGULATORY CITATION(S): 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.

Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army.

8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general, under honorable conditions discharge to honorable. The applicants record of service, the issues and documents submitted with his application were carefully reviewed.

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 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.

The applicant contends he was discharged for being charged and or convicted of DUI and being late to staff duty. The record of evidence reflects the applicant was discharged for being involved in an alcohol related incident and being convicted in a civilian court as he indicated on his application. Further, 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.

The applicant contends that he was punished twice for the same offense. Once by the civilian court, and again by the discharge he received. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.

The applicant contends his command did not acknowledge him not receiving a DUI or being convicted of and such crime. The applicant submitted a court document, dated 19 August 2013, indicating he was originally charged with DUI. The DUI was amended to negligent driving. There is no evidence in the record, at the time of the discharge, to show the DUI charge was false or unjust. Further, being that the document is dated the same day of the discharge, it is reasonable to believe the document would not have been available for consideration by the separation authority. Additionally, the document also reflects the disposition of the charge was a $950.00 fine and a 90 days of jail time (suspended).

The applicant contends he was not afforded the opportunity to consult with legal counsel. However, 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. Further, the applicants service record reflects on 26 June 2013, the applicant waived representation by counsel after consulted with the senior defense counsel. The character of the applicants discharge is commensurate with his overall service record.

The third party statement provided with the application speaks highly of the applicants performance. The author recognizes his good conduct after leaving the Army; however, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicants chain of command.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process.

9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted the following additional documents:

Statement from former First section sergeant 1 page

b. The applicant presented the no additional contentions.

c. Witness(es)/Observer(s): None

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 12 September 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: No

b. Change Characterization to: No Change

c. Change Reason to: No Change

d. Change SPD/RE Code to: No Change

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
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
BH –
Behavioral Health
HD –
Honorable Discharge
OAD –
Ordered to Active Duty
SPD –
Separation Program Designator
CG –
Company Grade Article 15
IADT –
Initial Active Duty Training
OMPF –
Official Military Personnel File
TBI –
Traumatic Brain Injury
CID –
Criminal Investigation Division
MP –
Military Police
PTSD –
Post-Traumatic Stress Disorder
UNC –
Uncharacterized Discharge
ELS –
Entry Level Status
MST –
Military Sexual Trauma
RE –
Reentry
UOTHC –
Under Other Than Honorable Conditions
FG –
Field Grade Article 15
VA –
Veterans Affair

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160005711

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