IN THE CASE OF: BOARD DATE: 15 May 2015 CASE NUMBER: AR20140008341 ___________________________________________________________________________ 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 effect, he extended after a combat tour to Iraq because he could not reenlist since his MOS was overstrength. He received an AGCM for exemplary behavior. The incident that led to his discharge was the first time he ever got in trouble. He believes his discharge was unjust. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 12 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 24 May 2013 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Paragraph 14-12b, JKA, RE-3 e. Unit of assignment: Rear Detachment, 1st BN, 503rd IN (Airborne), 173rd Airborne BCT (Rear) (Provisional), Vicenza, Italy f. Current Enlistment Date/Term: 12 November 2008, 5 years, 9 months, 24 weeks g. Current Enlistment Service: 4 years, 6 months, 13 days h. Total Service: 4 years, 6 months, 13 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 42A1P, Human Resources Specialist m. GT Score: 100 n. Education: GED o. Overseas Service: Italy, SWA p. Combat Service: Iraq (100309-110222) q. Decorations/Awards: AAM-2; AGCM; NDSM; ICM-2CS; GWOTSM; NPDR; ASR; OSR; MUC 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 12 November 2008, for a period of 4 years and 24 weeks; however, on 28 February 2011, he extended that enlistment by 21 months to a total of 5 years, 9 months, and 24 weeks. He was 18 years old at the time of entry and had a high school equivalency (GED). He was trained in and awarded military occupational specialty (MOS) 42A1P, Human Resources Specialist. He served in Italy and Iraq. He earned two AAM awards. He completed 4 years, 6 months, and 13 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 15 April 2013, 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 incidents: a. being found guilty of violating Article 91, UCMJ, by a Summary Court-Martial (130122), for being disrespectful in language towards an NCO; b. unlawfully striking an NCO with a closed fist, in violation of Article 128, UCMJ (130216); c. being found drunk on duty (130301), in violation of Article 112, UCMJ; d. being drunk and disorderly (130402), in violation of Article 134, UCMJ; and e. failing to go to his appointed place of duty at the prescribed time on three separate occasions (130215, 130216, and 1302301), in violations of Article 86, UCMJ. 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 18 April 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 3 May 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 24 May 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 11 March 2013, for assaulting an NCO (130216) and failing to go to his appointed place of duty at the prescribed time on two occasions (130215 and 130216). The punishment consisted of a reduction to the grade of E-1, forfeiture of $353, 14 days of extra duty and restriction, and an oral reprimand, (CG). 2. A Summary Court-Martial Record of Trial, indicates on 22 January 2013, the applicant was found being disrespectful in language and domineer towards an NCO (120831), in violation of Article 91, UCMJ. His sentence of a reduction to E-2 was approved on 5 February 2013. The Charge Sheet in the case shows the charge was preferred on 18 December 2012, and referred to trial by a summary court-martial. 3. Article 15, dated 26 September 2012, for being disrespectful in language towards an NCO (120831) and being derelict in the performance of his CQ duties (120831). The record reflects the applicant demanded trial by a court-martial. 4. Article 15, dated 25 June 2012, for being incapacitated due to overindulgence of intoxicating liquor (120402). The record reflects the applicant demanded trial by a court-martial. 5. Eight negative counseling statements, dated between 3 April 2012 and 4 March 2013, for failing to go to his appointed place of duty at the prescribed time; failing to follow a direct order of a commissioned officer; performance being unsatisfactory; assaulting an NCO; being insubordinate towards an NCO; failing to obey a lawful order; being involved in a alcohol-related incident; alcohol privileges being revoked; and a bar to reenlistment being imposed. 6. A Bar to Reenlistment Certificate, dated 27 April 2012, is self-explanatory. 7. Army Substance Abuse Program (ASAP) Enrollment, dated 18 April 2012, indicates the applicant was command referred. 8. An MP Report, dated 2 April 2012, indicates the applicant was the subject of an investigation for being drunk and disorderly and simple assault EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 214 dated 28 April 2014, for the period of service under current review; a character reference letter, dated 6 May 2014; oath of extension of enlistment, dated 28 February 2011; AGCM Permanent Orders, dated 17 November 2011; Service School Academic Evaluation Report, dated 12 August 2011; and two recommendations for award, dated 23 September 2011 and 11 October 2010. 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. 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 documents and 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 an Article 15 and a summary court-martial for violations of the Uniform Code of Military Justice and numerous negative counseling statements. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence to show that his service mitigated the misconduct or poor duty performance. 4. The applicant contends the discharge was unjust because he extended his enlistment after serving a combat tour to Iraq and he received an AGCM for exemplary behavior. 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 sufficient evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s Article 15 and summary court-martial actions, 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 sufficient evidence has been provided with the request for an upgrade of the discharge. 5. The applicant contends the incidents that caused his discharge were the only time he got in trouble in his entire Army career. Although referring to his involuntary discharge as a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by even a single incident provides the basis for a characterization. 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. 6. The third party statement provided with the application speak highly of the applicant’s performance; however, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, the statement does not provide any evidence sufficiently compelling to overcome the presumption of government regularity. 7. 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. 8. 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: 15 May 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: 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 FG - Field Grade IADT – Initial Active Duty Training RE - Reentry Honorable Conditions ADRB Case Report and Directive (cont) AR20140008341 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1