Applicant Name: ????? Application Receipt Date: 2012/05/31 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, he is requesting his discharge to be upgraded because the Article 15 he received was not justified. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 030225 Discharge Received: Date: 030424 Chapter: 14-12b AR: 635-200 Reason: Misconduct RE: SPD: JKA Unit/Location: Headquarters and Headquarters Company, 3rd Battalion, 15th Infantry, Fort Stewart, GA Time Lost: Under Title 10 USC972: (011003-011203) Article 15s (Charges/Dates/Punishment): 021223, was disrespectful towards a commissioned officer, a CPT by walking away during a counseling session (021129); willfully disobeyed a lawful order from a commissioned officer, CPT (021127; willfully communicated a threat to a commissioned officer, a CPT (021126); and willfully communcated a threat to a noncommissioned officer, a 1SG (021129, reduction to E-4, forfeiture of $940.00 pay per month for 2 months, extra duty and restriction for 45 days. (FG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 21 Current ENL Date: 991104 Current ENL Term: 06 Years ????? Current ENL Service: 03 Yrs, 05 Mos, 20 Days ????? Total Service: 05 Yrs, 03 Mos, 22 Days ????? Previous Discharges: RA-971101-991103/HD Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 11B10/Infantryman GT: 86 EDU: HS Grad Overseas: Germany Combat: None Decorations/Awards: NDSM, ASR, OSR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None listed by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 24 February 2003, 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 pattern of misconduct for making a false official statements, being disrespectful toward superior noncommissioned officers, and failing to report on several occasions, with a general, under honorable conditions discharge. He was advised of his rights. On 21 March 2003, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board even though he was not entitled to one, was advised of the impact of the discharge action, and did not submit a statement in 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 of the separation with a general, under honorable conditions discharge. On 10 April 2003, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. b. Legal Basis for Separation: 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The analyst determined that the applicant’s 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. By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. The applicant contends his discharge should be upgraded because the Article 15 he received was not justified. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly given an Article 15. On 3 January 2003, CPT G, Staff judge Advocate, wrote in block#8 of the DA Form 2627 (Record of proceedings Under Article 15, UCMJ) that the proceedings were conducted in accordance with law and regulation and the punishment imposed were not unjust nor disproportionate to the offense committed. The applicant’s statements alone does not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge. Furthermore, the applicant contends that the narrative reason for his discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct", and the separation code is "JKA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Lastly, the analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 3 April 2013 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: An online DD Form 293, a DD Form 214; a three page memorandum from the senior defense counsel, dated 3 January 2003; a memorandum to the Cdr, Montgomery Recruiting Battalion, dated 28 May 2012 VIII. Board Discussion, Determination, and Recommendation 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 to be proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: N/A RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board JOSEPH M. BYERS Lieutenant Colonel, U. S. Army Secretary Recorder 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 UOTH - Under Other Than Honorable Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120010417 ______________________________________________________________________________ Page 2 of 4 pages