IN THE CASE OF: Mr. BOARD DATE: 24 November 2014 CASE NUMBER: AR20140000385 ___________________________________________________________________________ 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable. 2. The applicant states, in pertinent part and in effect, he feels his discharge was unfair because his first sergeant constantly threatened him during deployment. He was discharged during a widely known reduction in ranks in 2013; he and many other Soldiers were discharged on false statements. He returned home from a war zone that had more than its share of combat situations and close calls which caused him trouble with readjusting. He sought help from his chain of command for counseling but they refused to help. Due to some of his appointments, he was punished and received write-ups and poor remarks that eventually led to his discharge. He served over four years and risked his life in Afghanistan looking for lEDs in the sand for 13 months. He would like his discharge to reflect the true sacrifice he made for his country. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 December 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 21 February 2013 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Paragraph 14-12b, JKA, RE-3 e. Unit of assignment: 610th Engineer Support Co, 14th Engineer Bn, Joint Base Lewis-McChord, WA f. Current Enlistment Date/Term: 30 June 2009, 4 years g. Current Enlistment Service: 3 years, 6 months, 22 days h. Total Service: 3 years, 6 months, 22 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 12N10, Horizontal Construction Specialist m. GT Score: 98 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (110718-120719) q. Decorations/Awards: NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 30 June 2009, for a period of 4 years. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 12N10, Horizontal Construction Specialist. He served in Afghanistan. His record documents no other acts of valor or significant achievement. He completed 3 years, 6 months, and 22 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 3 January 2013 (as acknowledged by the applicant), 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 a pattern of misconduct; specifically, for the following offenses: a. being apprehended for DUI on or about 3 October 2010; b. being disrespectful to an NCO on or about 3 October 2010; c. being drunk and disorderly on or about 3 October 2010; d. making a false official statement on or about 30 October 2012; and e. failing to report on divers occasions from on or about 17 June 2010, to on or about 30 October 2012. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 7 January 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on 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 with a general, under honorable conditions discharge. 4. On 6 February 2013, 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 discharged from the Army on 21 February 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA, and an RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 20 November 2012, failure to report on four occasions (101129, 121029, 121030, and 121016), and making a false official statement (121030). The punishment consisted of a reduction to the grade of E-3 (suspended), forfeiture of $462 (suspended), and 14 days of extra duty (CG). 2. Record of Supplementary Action under Article 15, UCMJ, dated 14 December 2010, indicates the suspended punishment of forfeiture of $811 imposed on 19 November 2010, was vacated based on the applicant failing to be at his appointed place of duty at the prescribed time on two occasions (101201 and 101129). 3. Article 15, dated 19 November 2012, for being disrespectful toward an NCO (101003) and being drunk and disorderly (101003). The punishment consisted of a reduction to the grade of E-2, forfeiture of $811 (suspended), and 45 days of extra duty (FG). 4. Article 15, dated 2 August 2010, failure to report on four occasions (100713, 100702, 100619, and 100617). The punishment consisted of reduction to the grade of E-2 (suspended), forfeiture of $378 (suspended), and 10 days of extra duty and restriction (CG). 5. Several negative counseling statements, dated between 21 September 2012, and 2 November 2012, for failing to be at his appointed place of duty at the prescribed time on numerous occasions, and lacking motivation. 6. A General Officer Memorandum of Reprimand, dated 17 November 2010, for driving under the influence of alcohol. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided none. POST-SERVICE ACTIVITY: The applicant provided none. 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. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned a RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s 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 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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by four Articles 15 actions for multiple violations of the Uniform Code of Military Justice, a GOMOR, and numerous counseling statements. 3. 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. 4. The applicant contends the discharge was unjust because he was constantly threatened by his first sergeant during deployment and was discharged on false statements. 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 issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s four Article 15 actions, a GOMOR, and numerous negative counseling statements justify a pattern of misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 5. The applicant contends returning home from a war zone, and having more than its share of combat situations and close calls caused him trouble with readjusting. 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. 6. The applicant contends he sought help for counseling from his chain of command but they refused to help. However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. 7. The applicant contends that he served over four years and risked his life in Afghanistan looking for lEDs in the sand for 13 months. 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 or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice. 8. 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 applicant’s discharge is commensurate with his overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 9. 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: 24 November 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 2 No Change: 3 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) AR20140000385 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1