IN THE CASE OF: Mr. BOARD DATE: 8 October 2014 CASE NUMBER: AR20140010598 ___________________________________________________________________________ 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 upgrade of his general, under honorable conditions discharge to honorable. 2. The applicant states, in effect, the discharge was unfair and improper. The applicant contends the counselings were incomplete and improper, many of which do not reflect the reality of the situation. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 June 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 June 2005 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3 e. Unit of assignment: G Company, 526th Brigade Support Battalion 2d Brigade Combat Team, 101st Airborne Division (Air Assault), Fort Campbell, KY f. Current Enlistment Date/Term: 22 May 2002/3 years g. Current Enlistment Service: 2 years, 7 months, 23 days h. Total Service: 2 years, 11 months, 24 days i. Time Lost: 29 days j. Previous Discharges: DEP, 020416-020521, NA k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 92G10, Food Service Specialist m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (030308-040218) q. Decorations/Awards: ICM, GWOTSM, NDSM, ASR, OSR-2 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 Regular Army on 22 May 2002, for a period of 3 years. He was 20 years old at the time of entry and a high school graduate. He served in Iraq and completed 2 years, 11 months, and 24 days of active duty service. When his discharge proceedings were initiated, he was serving in Fort Campbell, Kentucky. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 6 June 2005, 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 pattern of misconduct. Specifically for the following offenses: a. Article 15 for going AWOL (040916), b. AWOL (040720-040819), c. failure to follow orders (030410, 030530, 030919, 030811, 040721, 040818, 050127), d. disrespect to an NCO (030410, 030530, 030811, 050127), e. failure to report to his designated place of duty (040720), f. statements about killing himself (030331, 030429, 031201), g. driving on post while having on-post driving privileges suspended (041017, 040818), h. pointed weapon at another Soldier’s head (030428) and, i. unsatisfactory job performance (020323, 030410, 030429, 030430, 030530, 031231, 040720, 040721, 040730, 040818, 040831, 040930, 041130, 050104, 050301, 050323) 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 7 June 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit statements 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 8 June 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 discharged from the Army on 15 June 2005, 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 record shows he was absent without leave (AWOL) during the period 20 July 2004 through 18 August 2004. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 16 September 2004, without authority, absent himself from his unit (040720-040818). The punishment consisted of a reduction to the grade of E-1, forfeiture of $586.00 per month for two months, 45 days of extra duty and restriction (FG). 2. Over fifty counseling statements dated between 2 December 2002 and 23 March 2005, for depression, debt counseling, performance counseling, sexual harassment claim against a fellow Soldier, emotional problems, work and relationship problems, disobeying a direct order, disrespecting a noncommissioned officer, suicidal tendencies, unsanitary living conditions, command imposed bar to reenlistment, revocation of driving privileges on post, failure to report, and AWOL. 3. DA Form 3822-R (Report of Mental Status Evaluation), dated 20 April 2005, reflects the applicant had a clear and normal thought process and was mentally responsible. EVIDENCE SUBMITTED BY THE APPLICANT: 1. Memorandum for Record, United States Army Trial Defense Service, submitted by CPT G, trial defense attorney. CPT G states in paragraph 2, “when Trial Defense Service (TDS) returned his separation packet on 2 June 2005, for improper notification under AR 635-200, paragraph 2-2, the applicant’s battalion commander, LTC T, reacted by storming into the TDS office and demanding that the TDS attorney allow the packet to go forward with the improper notice because the applicant is a “shit bag” and his battalion has standards.” In paragraph 3a, CPT G identifies the absence of assessment of the plan of action to improve the applicant’s behavior. Of the 56 counseling statements submitted, only six statements contained an assessment to the plan of action. 2. Undated letter written by the applicant’s father stating the applicant exhibited a good deal of bad judgment while in the service. He also states the applicant’s pattern of misconduct was not addressed in a way that would have changed his attitude, but rather as a punitive action. As a result, the letter states, a wall of animosity between the applicant and his chain of command was formed. The applicant’s father states the applicant had received treatment for psychological problems that dated back to basic training and continued in Iraq. In addition, the applicant’s immaturity clouded his judgment, which ultimately led to him going AWOL. POST-SERVICE ACTIVITY: None were 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 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 an Article 15 for violation 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 the counselings were incomplete and improper, many of which do not reflect the reality of the situation. 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 Article 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 third party statements provided with the application speak highly of the applicant’s performance and alleged maltreatment from his chain of command. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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: 8 October 2014 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) AR20140010598 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1