IN THE CASE OF: BOARD DATE: 10 June 2015 CASE NUMBER: AR20140007400 ___________________________________________________________________________ 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 general, under honorable conditions discharge characterization to honorable. 2. The applicant states, in effect, the reason for his separation was not misconduct. The applicant states, he voluntarily returned the property once the real owner contacted him. The applicant contends, he was told by his colonel that his discharge can be removed from his DD 214 after one year. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 22 February 2008 d. Reason/Authority/SPD/RE Code: Misconduct (Civil Conviction), AR 635-200, Chapter 14, Section II, JKB, RE-3 e. Unit of assignment: Echo Company, 101st Brigade Troops Battalion, Fort Campbell, KY f. Current Enlistment Date/Term: 23 May 2006/4 years g. Current Enlistment Service: 1 year, 8 months, 27 days h. Total Service: 2 years, 6 months, 8 days i. Time Lost: None j. Previous Discharges: USAR, 050815-060522, HD k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 42A10, Human Resources Specialist m. GT Score: 103 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWTSM, ASR r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army Reserve on 15 August 2005 for a period of 8 years. He was 36 years old at the time of entry and a high school graduate. He did an immediate reenlistment in the Regular Army on 23 May 2006 for a period of 4 years. He completed 2 year, 6 months, and 8 days of creditable military service. When his discharge proceedings were initiated, he was serving at Fort Campbell, Kentucky. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 5 February 2008, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14-5, by reason of misconduct (conviction by civil court). Specifically for being convicted of assault 4th degree domestic violence with minor injury. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 7 February 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected not to submit 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 11 February 2008, 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 22 February 2008, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14, Section II, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB 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. An Article 15, dated 17 January 2008, for failing to go at the time prescribed to his appointed place of duty (071004), failing to obey a lawful order (071002), and being disrespectful in language toward an NCO (071013). The punishment consisted of a reduction to the grade of E-1, forfeiture of $650.00 pay per month for one month (suspended), 45 days of extra duty, and 45 days of restriction (suspended) (FG). 2. Seven negative counseling statements, dated between 1 July 2007 and 17 January 2008, for disrespect to an NCO, lying to an NCO, being arrested for domestic assault (4th degree), placed on restriction, court appearance, ordered to discontinue counseling in civilian sector, and indebtedness. 3. Commonwealth of Kentucky Court Documents, dated between 6 August 2007 and 2 October 2009, includes the applicant’s case history, personal information sheet, uniform citation, and an order of protection (17 pages). 4. DA Form 3822-R (Report of Mental Status Evaluation), dated 5 October 2007, reflects that the applicant had a clear and normal thought process and was mentally responsible. The applicant was diagnosed with (Axis I) adjustment disorder with mixed anxiety and depressed mood. 5. US Army Medical Department Activity Fort Campbell Memorandum, dated 19 November 2007, written by MAJ L, Chief, Audiology, states the applicant was suspected of malingering. It is of MAJ L’s medical opinion, based upon objective testing and the drastically inconsistent screening results, the applicant had intent to feign hearing loss. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 149, dated 21 April 2014, and a DD Form 214 covering the period of service under review. 2. Self-authored statement, dated 21 April 2014, written by the applicant, requesting the misconduct be removed off of his DD 214. The applicant cites a misunderstanding regarding a four-wheeler purchased from another Soldier. 3. Blanchard Army Community Hospital Department of Behavioral Health memorandum, dated 16 October 2007, written by CPT M, Psychiatrist, verifying the applicant was currently being treated by her. POST-SERVICE ACTIVITY: None was provided with the application. 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 the applicant’s 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 the applicant's discharge. 2. The record confirms 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice. 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 claims the reason that caused his discharge were not misconduct. However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 5. The applicant’s issue about an upgrade based on the time that has elapsed since the discharge was carefully considered. However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. 6. The records show the proper discharge and separation authority procedures were followed in this case. 7. 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: 10 June 2015 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 UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20140007400 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1