IN THE CASE OF: Mr. BOARD DATE: 28 June 2013 CASE NUMBER: AR20130003250 ___________________________________________________________________________ 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his discharge characterization from general, under honorable conditions to fully honorable. 2. The applicant states, in effect, that he has matured since leaving the Army. He is now a well established and contributing member of his community. He apologizes for the actions that caused his discharge and states his marriage was strained before his unit was deployed. Once in Iraq, he witnessed a terrible accident in which a little girl was ran over by a truck that was in front of his. He completed his tour and upon returning to Germany he found his marriage had failed. He provides a detailed statement with his account of the events that led to his discharge for the Board’s consideration. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 11 February 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 14 January 2006 d. Reason/Authority/SPD/RE: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3 e. Unit of assignment: 109th Transportation Co, Mannheim, Germany f. Current Enlistment Date/Term: 1 August 2001, 4 years g. Current Enlistment Service: 4 years, 5 months, 14 days h. Total Service: 12 years, 5 months, 14 days i. Time Lost: 40 days (not shown on DD Form 214) j. Previous Discharges: USMC (870820-910819), HD USMCR (dates NIF), NIF k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 88M10, Motor Transport Specialist m. GT Score: 113 n. Education: HS graduate o. Overseas Service: Germany, SWA p. Combat Service: Kuwait/Iraq (030205-031017) q. Decorations/Awards: AAM, MCGCM, AGCM, NDSM, GWOTEM w/Arrowhead, GWOTSM, ASR, OSR, Navy Sea Service Deployment Ribbon r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he served in the US Marine Corps since August 1987 until his honorable discharge in August 1991. He was transferred to the USMC Reserve to complete his statutory obligation. On 1 August 2001, the applicant joined the Regular Army for a period of 4 years. He was 32 years old at the time and a high school graduate. The applicant’s record shows he was retained in the service for a period of 168 days past his expiration term of service for national security reasons. He achieved the rank of SPC/E-4 and was awarded an AAM and an AGCM. SEPARATION FACTS AND CIRCUMSTANCES 1. The service record shows that on 17 October 2005, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct that affected the good order and discipline of the unit. 2. Based on this pattern of misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights. 3. On 18 October 2005, the applicant waived legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to appear before 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 commander reviewed the proposed action and recommended approval of a general, under honorable conditions discharge. 4. On 2 December 2005, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 14 January 2006, under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3. 6. The applicant’s record contains documentation that indicates he was AWOL for 39 days from 19 April 2005 until 6 June 2005 and again AWOL for 1 day on 27 January 2005. Total lost time is 40 days. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD 1. The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows: a. On 27 January 2005, for failing to report (041206). His punishment consisted of 14 days of extra duty and restriction (Summarized) b. On 6 April 2005, for being AWOL (050127-050128), failing to report 3 times (050131, 050201, 050325). His punishment consisted of reduction to the grade of E-3, forfeiture of pay in the amount of $382.00, 14 days of extra duty and restriction (CG) 2. There are 9 negative counseling statements dated between 1 February 2005 and 18 August 2005, for offenses related to failures to report, disobeying lawful orders, mental status evaluation, AWOL prevention, and civilian clothes wear restriction. EVIDENCE SUBMITTED BY THE APPLICANT Seven character reference letters, DD Form 214 from the Army and Marine Corps, and a self-authored statement. POST-SERVICE ACTIVITY: Applicant states he attended school and graduated as an auto mechanic and has become a citizen and man of honor. 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 member’s 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 Soldier’s separation specifically allows such characterization. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining his military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge. 2. The record confirms 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. It brought discredit on the Army, and was prejudicial to good order and discipline. By the repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice and several negative counseling statements. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant contends that he has matured since leaving the Army. He is now a well established and contributing member of his community and apologizes for the actions that caused his discharge and states his marriage was strained before his unit was deployed. While in Iraq he saw a terrible accident and upon returning to Germany he found his marriage had failed. However, the record shows the applicant met entrance qualification standards to include age; he was 32 years old when he joined the Army. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 5. Moreover, the applicant’s 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 repeated incidents of misconduct and by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice. 6. The applicant also contends that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 7. Since leaving the Army the applicant has attended school and graduated as an auto mechanic and is now a contributing member of his community. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. 8. Finally, the third party statements provided with the application speak highly of the applicant’s performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 9. Records show the proper discharge and separation authority procedures were followed in this case. 10. 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: 28 June 2013 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 UOTH - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR 20130003250 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1