IN THE CASE OF: BOARD DATE: 19 September 2014 CASE NUMBER: AR20140008880 ___________________________________________________________________________ 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 to honorable. 2. The applicant states, in effect, he completed his first term in Afghanistan and that he never signed his release papers. Prior to his discharge, he requested to change units and to relocate overseas. He sought counseling from the chaplain; requested to speak with the Division Command Sergeant Major; attempted all possible ways to try to stay in the Army; and, he did not receive appropriate dental services prior to separation. The applicant further states that he accrued 45 days leave and his service bonus was taken when he filed his income tax. He was reassured by the JAG officer that they were on it; however, the applicant was left with no money because his former spouse was given a large sum of money in addition to the $1300 a month. He feels his discharge was unjust and he would like to receive the benefits to go back to school. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 19 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 3 August 2005 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200 Chapter 14-12b, JKA, RE-3 e. Unit of assignment: Company C, 1st Battalion, 16th Infantry Fort Riley, KS f. Current Enlistment Date/Term: 2 January 2004, 4 years g. Current Enlistment Service: 1 year, 7 months, 2 days h. Total Service: 3 years, 9 months, 26 days i. Time Lost: 48 days j. Previous Discharges: DEP 010726-010820/NA RA 010821-040101/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 98 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (030805-040515) q. Decorations/Awards: AGCM, NDSM, GWOTSM, GWOTEM ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 21 August 2001, for a period of 3 years. He reenlisted in the Regular Army on 2 January 2004, for four years. He was 25 years old at the time of reenlistment and a high school graduate. He served in Afghanistan and completed 3 years, 9 months, and 26 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Riley, KS. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 21 July 2005, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, a pattern of misconduct; specifically for: a. Failing to report on many occasions, b. Derelict in the performance of his duties on many occasions, c. Engaged in domestic battery, d. AWOL between on or about 20 May 2005 and on or about 23 May 2005, and e. Unable to perform his duties due to previous wrongful overindulgence in alcoholic liquor. 2. Based on the above pattern of misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 21 July 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated that he would 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 25 July 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 3 August 2005, under Army Regulation 635-200, Chapter 14-12b, by reason of 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 shows he was absent without leave (AWOL) during the period 20 May 2005 through 23 May 2005, and in civilian confinement during the period 4 April 2005 through 16 May 2005; and was in military confinement on 17 May 2005 and returned to active duty. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 30 June 2005, for absence from the unit, without authority, from on or about 20 May 2005 to on or about 23 May 2005. The punishment consisted of reduction to the grade of E-3, forfeiture of $532.00 per month for two months (suspended), 45 days of extra duty and restriction to the limits of the post (CG). 2. Article 15, dated 11 July 2005, for failure to be at appointed place of duty at the prescribed time on or about 30 June 2005 and, as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of his duties on or about 5 July 2005. The punishment consisted of reduction to the grade of E-2, forfeiture of $323.00 per month for one month, 7 days of extra duty and restriction to the limits of the post (FG). 3. Six negative counseling statements dated between 7 January 2005 and 5 July 2005, for showing up to work late, missing formations, and drunk on duty. 4. Form 3822-R (Report of Mental Status Evaluation), dated 1 June 2005, reflects the applicant had a clear and normal thought process and was mentally responsible. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a character letter, dated 30 June 2014, from his former father-in-law, Sergeant Major (Retired) L. The letter states that the applicant freely volunteered to enlist in the Army as an Infantry Soldier shortly after getting married. The applicant was then deployed to Afghanistan with the 10th Mountain Division. It was during the deployment, the applicant discovered that his spouse was having an extramarital affair. Upon his return, the applicant chose to work on his marriage, reenlisted, and relocated to Fort Riley, Kansas. Tension between the applicant and his spouse began to rise and eventually spiraled out of control. The applicant was charged with assault and placed in civilian confinement. The letter states that the applicant’s spouse chose not to post the necessary bond; therefore, resulting in the applicant’s duty status being changed to AWOL. It further states that the applicant’s spouse had been arrested for trafficking meth, charged, and has been incarcerated since August 2009; thus, leaving the applicant to become a single parent. In summary, sergeant major (retired) asked that the board reconsider all facts of the case and that the applicant deserves an honorable discharge and his benefits to be reinstated. POST-SERVICE ACTIVITY: The applicant did not provide any 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 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 his service below that meriting a general or a fully honorable discharge. The applicant’s record of service was marred by 2 Articles 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 contends the discharge was unjust because he completed his first term in Afghanistan. The evidence of record shows the applicant completed a combat service tour in Afghanistan for a period of 9 months and 11 days. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated. In fact, the applicant’s two Articles 15 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 he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements. Moreover, 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. 6. The applicant contends he sought counseling from the chaplain and the division command sergeant major. Specifically, the applicant contends he attempted all possible means to stay in the Army. While the applicant may believe he exhausted all avenues of approach in order to stay in the Army, the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 7. The applicant contends he never signed his release papers, he did not receive appropriate dental services prior to his separation, and he had accrued 45 days leave upon discharge. However, the issues the applicant submitted are not matters upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. 8. The applicant contends that his service bonus was taken at the time his income taxes were filed, reassured by the JAG officer that they were on it, and left with no money because his former spouse was given a large sum of money in addition to $1300 a month. However, the issues the applicant submitted are not matters upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. a. DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus), dated 2 January 2004, applicant agreed to completing the period of service of four years. Accordingly, the applicant was advised and understood, as signified by the applicant’s signature, that if he did not complete the full period of service, or if he did not remain technically qualified in MOS 11B, he will not get any more installments of the bonus, and he will have to pay back as much of the bonus as he already received for the unexpired part of the period of obligated service. b. AR 300-4, paragraph 1-8c, states indebtedness to the U.S. Army will not be remitted or canceled if a Soldier receives less than an honorable discharge at time of separation. 9. The applicant has expressed his desire to take advantage of the opportunities and the benefits of returning to school. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 3. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 10. The character statement provided with the application, authored by the retired sergeant major, spoke highly of the applicant and the mitigating circumstances that may have led to the pattern of misconduct. However, the individual 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. 11. The records show the proper discharge and separation authority procedures were followed in this case. 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: Records Review Date: 19 September 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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) AR20140008880 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1