IN THE CASE OF: BOARD DATE: 10 June 2014 CASE NUMBER: AR20140003206 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the former service member's record of service during the period of enlistment under review, hearing testimony from his family, 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 FORMER SERVICE MEMBER FAMILY’S REQUEST AND STATEMENT: 1. His family requests an upgrade of his discharge from general, under honorable conditions to honorable. 2. His family expressed a desire to have his remains buried at Arlington National Cemetery where his grandparents are interred. 3. His family states, in effect, that the he had an extensive medical history of chronic abdominal pain and vomiting for at least 3 and 1/2 years without any official cause. He was declared 70% disabled shortly after discharge from Fort Hood and was receiving disability payments. He and his family endured a lot of stress because of his medical issues. His family members contend they witnessed this first hand multiple times during the last 2 years of his life. His medical condition started while he was in the Army. His family believes the he was a good Soldier and has certificates regarding his good conduct and that he was attending college under the GI Bill. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 December 2011 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: HHD, 49th MCB, 4th SB (R) (P), Fort Hood, TX f. Current Enlistment Date/Term: 29 February 2008, 5 years g. Current Enlistment Service: 3 years, 9 months, 9 days h. Total Service: 5 years, 4 months, 11 days i. Time Lost: None j. Previous Discharges: RA-060727-080228/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 25B10, IT Specialist m. GT Score: 105 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (070927-081031) q. Decorations/Awards: ARCOM, AAM, AFGCM, ICM-w/CS, NDSM GWOTSM, ASR, OSR, CIB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF FORMER SERVICE MEMBER’S SERVICE: He enlisted in the Regular Army on 27 July 2006, for a period of 2 years and 16 weeks. He was 17 years old at the time of entry and a high school graduate. On 29 February 2008, he reenlisted for a period of 5 years. His record indicates he served in Iraq; achieved the rank of SPC/E-4; and received several awards to include an ARCOM, AAM, AGCM, and the CAB. He was serving at Fort Hood, TX when his separation was initiated. He completed 5 years, 4 months, and 11 days of total military service. FORMER SERVICE MEMBER’S SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in his service record indicates that on 10 November 2011, the unit commander notified him of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense) for being apprehended and transported to the police station at Fort Hood, TX (110501) where he failed a videotaped field sobriety test; he consented to a breath alcohol test which resulted in a .224 breath alcohol content; he pleaded guilty in the United States District Court, Western District of Texas to driving while intoxicated. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised of his rights. 3. On 16 November 2011, he consulted with legal counsel, was advised of the impact of the discharge action, and indicated his intention to submit a statement on his behalf which was not found in the available record. 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. 4. On 16 November 2011, the separation authority waived further rehabilitation and directed his discharge with a characterization of service of general, under honorable conditions. 5. He was discharged from the Army on 7 December 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and a RE code of 3. 6. His service record does not contain any evidence of unauthorized absence or time lost. EVIDENCE OBTAINED FROM THE FORMER SERVICE MEMBER’S RECORD: 1. A Military Police Report, dated 19 January 2010, that indicates he was the subject of an investigation for public intoxication. 2. A Military Police Report, dated 20 August 2010, that indicates he was the subject of an investigation for assault. 3. A Military Police Report, dated 4 May 2011, that indicates he was the subject of an investigation for driving while intoxicated. 4. A General Officer memorandum of reprimand, dated 6 May 2011, indicating he was reprimanded for driving an automobile while intoxicated and traveling at 50 mph in a posted 30 mph zone. 5. Two negative counseling statements dated 2 May 2011, and 24 October 2011, concerning being arrested for driving while intoxicated (1 May 2011), and recommendation for separation under the provision of Chapter 14, paragraph 14-12c, commissioned of a serious offense. 6. Report of Mental Status Evaluation, dated 4 November 2011, indicating he had been diagnosed with alcohol abuse (early full remission). However, he could understand and participate in administrative proceedings and that he could appreciate the difference between right and wrong. EVIDENCE SUBMITTED BY THE FORMER SERVICE MEMBER’S FAMILY: His family provided a DD Form 149, a copy of his certificate of death, state of Maryland letter of administrative of a small estate, document from his medical records to include medical history record, uniform consultation referral form, copies of diploma, certificates of achievement and completion of course requirements, regimental affiliation certificate, copy of certificates for award of the ARCOM, AAM, AGCM, enrollment in course letters, letter from Department of Veterans Affairs reference his award of 70% disability for service connected disability, and a copy of his DD Form 214 for the period of service under review. FORMER SERVICE MEMBER’S POST-SERVICE ACTIVITY: His family states the he was attending college under the GI Bill. 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 former service member’s family request for an upgrade of his characterization of service was carefully considered. However, after examining his record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of his discharge. 2. The record confirms that his 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 misconduct, he diminished the quality his service below that meriting a fully honorable discharge. His record of service was marred by a General Officer Memorandum of Reprimand for driving while intoxicated, three incidents of investigation (i.e., assault, public intoxication, and driving while intoxicated), and two negative counseling statements. 3. His family 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. His family contends the he was a good Soldier. His 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. 5. Furthermore, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears his generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. 6. His family contends that he was unjustly discharged. 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. His family bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has his family produced any evidence to support the contention that the he was unjustly discharged. In fact, his family statement alone does not overcome the government’s presumption of regularity and any additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 7. His family also contends that he had an extensive medical history and was declared 70% disabled. The evidence submitted by the his family indicating that he had a repeated history of problems with abdominal pain, nausea, vomiting and that he was service connected with 70% disability for depression was noted. The fact the Veterans Administration has granted him service connection for medical conditions that he suffered while on active duty does not support a conclusion that these conditions rendered him unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that he was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 8. The record shows that on 4 November 2011, he underwent a mental status evaluation which indicates that he could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. 9. 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 his rights were fully protected throughout the separation process. The character of his discharge is commensurate with his overall service record. 10. 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 former service member were fully protected throughout the separation process. The character of his discharge is commensurate with his overall service record. 11. His family expressed a desire to have his remains buried at Arlington National Cemetery. However, this issue does not fall within the purview of this Board. Accordingly, his family should contact a local office of the Department of Veterans Affairs for further assistance relating to this issue. 12. 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: Personal Appearance Date: 10 June 2014 Location: Washington, DC Did the former service member’s family testify? Yes Counsel: Yes Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The former service member’s family submitted the following additional documents: a. Education transcripts b. VA Medical Health letters c. SARP Program certificate d. Bart Shaver, Iraq medic, email In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by his family at the personal appearance hearing. 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: No Change Change RE Code to: No Change 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) AR20140003206 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1