IN THE CASE OF: BOARD DATE: 12 January 2015 CASE NUMBER: AR20140017486 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on his combat service and his testimony and as a result it is inequitable. Accordingly, the Board recommends the applicant be considered for a change of his discharge by the Adjutant General, States of Kentucky, with issuance of a new NGB Form 22a, to reflect the characterization of service as general, under honorable conditions. The Board determined the reason for discharge was both proper and equitable, and voted not to recommend a change. 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 discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, that his discharge was an injustice. He contends that as a result of his discharge the Kentucky National Guard is trying to make him repay the bonus he received. He contends he does not owe the bonus because he was discharged due to racial injustice, racial discrimination, and reprisal for his testimony against three noncommissioned officers. He contends the unit tried to say he missed a drill when he knows he did not. He believes an injustice has been committed towards his race and humanity. He is a combat veteran, who served in Operation Iraqi Freedom in 2005, deployed with the Mississippi National Guard and received an honorable discharge. When he told on the individuals who called him racial names he was discharged and believes this was not right. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 3 October 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 24 January 2011 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, NGR 600-200, Chapter 6 Paragraph 6-35i(1), RE-3 e. Unit of assignment: 203rd Forward Support Company, Brandenburg, KY f. Current Enlistment Date/Term: 24 April 2008, 1 year (The applicant extended his enlistment six years on 18 February 2009) g. Current Enlistment Service: 2 years, 9 months, 1 day h. Total Service: 8 years, 11 months, 24 days i. Time Lost: 2 days j. Previous Discharges: DEP-990128-990303/NA RA-990304-010926/GD Break-in-Service ARNG-031009-040526/NA ARNG-040527-040808/NA OAD-040809-060108/HD (Reenlisted 20 December 2005 for a period of 6 years) ARNG-060109-070502/GD Break-in-Service k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 74D10, Chemical, Biological, Radiological, and Nuclear (CBRN) Specialist m. GT Score: NIF n. Education: GED o. Overseas Service: Southwest Asia (During a prior period of service) p. Combat Service: Kuwait/Iraq (050114-051222) q. Decorations/Awards: AAM, ICM, NDSM, AFRM-w/M Device, GWOTSM ASR, OSR, CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the United States Army Reserve 28 January 1999, for a period of 8 years. On 4 March 1999, he enlisted in the Regular Army. He was 18 years old at the time of entry and had a high school equivalency (GED). On 26 September 2001, he was discharged with a general, under honorable conditions discharge and transferred to the USARCG. On 9 October 2003, he enlisted in the Army National Guard for 5 years and 17 weeks, and reenlisted 27 May 2004, for 4 years and 36 weeks, and 20 December 2005, for 6 years. After a break in service, the applicant reenlisted on 24 April 2008, for a period of one year and extended that enlistment 6 years on 18 February 2009. His record indicates he achieved the rank of SPC/E-4, and served in Iraq during a prior period of service. He earned several awards which includes the AAM. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Kentucky Army National Guard. However, documents submitted by the applicant indicate on 24 August 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, paragraph 12-1b, AR 135-178, by reason of pattern of misconduct (i.e. misconduct, unsatisfactory participation and AWOL). Specifically, for the following offenses: a. as a result of a 15-6 investigation of misconduct during 17-19 April 2009, IDT involving alcohol and conduct unbecoming a Soldier; was recommended for separation from the military for patterns of misconduct, b. he visited the Recruiting and Retention Headquarters to inquire about his bonus payment, during that visit he was out of line in his conversation and tone with an employee (090713), c. he was counseled (090725) to wait until (090909) to inquire as to when he could expect his reenlistment bonus to be paid due to the process time of 14-60 days by DFAS. On 27 July 2009, he called SFC B asking him when his bonus would be paid, this was a failure to follow a direct order by his commander, d. he was AWOL (080721) from annual training when he left Camp Shelby unauthorized and did not return until (080722), which resulted in his receiving of an Article 15 that included a $100.00 fine and reduction in grade, e. he was dropped from the rolls from the Mississippi Army National Guard due to being AWOL from an Active Duty MOS school (070502), f. he was discharged from the Mississippi Army National Guard for unsatisfactory participation (040514), and g. he was discharged from the Regular Army for misconduct (010926), all these incidents constitute a pattern of misconduct. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. The unit commander indicated in the notification letter that he was suspending the separation action for 45 days, to allow the applicant with the opportunity to exercise his right to consult with legal counsel. 4. The applicant consulted with legal counsel and requested consideration of his case by an administrative separation board. The document indicating if the applicant submitted a statement on his own behalf is not contained in the available record. Further, the applicant's chain of command’s recommendation was not found in the available record. Therefore the presuming of government regularity is presumed in the discharge process. 5. On 3 May 2010, the applicant was notified to appear before an administrative separation board and advised of his rights. 6. On 5 June 2010, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. 7. The separation authority's memorandum approving the finding of the separation board's recommendation and directing the applicant's discharge was not found in the available records. However, the record contains a properly constituted NGB Form 22 (Departments of the Army and The Air Forces National Guard Bureau Report of Separation and Record of Service), which was not authenticated by the applicant’s signature. 8. The NGB Form 22 indicates that on 24 January 2011, the applicant was discharged under the provisions of Chapter 6, paragraph 6-35i(1), NGR 600-200, for acts or patterns of misconduct, with a characterization of service of under other than honorable conditions. The NGB Form 22 also shows a reentry (RE) code of 3. 9. The applicant’s record of service indicates two days of time lost for being AWOL on 21 July 2008, and 22 July 2008. 10. Evidence of record shows that on 10 June 2014, the Adjutant General for the Kentucky Army National Guard reviewed the petition submitted by the applicant requesting his discharge be upgraded to honorable. However, after careful consideration of the applicant's request his petition was denied. It was noted in the document the applicant was commended for his upcoming graduation and subsequent pursuit of civilian employment; however the applicant's discharge accurately reflected the nature of his service in the Kentucky National Guard and to grant the relief the applicant was seeking would undermine the good order and discipline of the force. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Article 15, imposed on 25 July 2008, for going AWOL from Annual Training 21 July 2008 and 22 July 2008. The punishment consisted of reduction to the grade of E-1 and forfeiture of $100.00 pay (FG). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149 in lieu of a DD Form 293, a self-authored statement consisting of 14 pages, a copy of the decision letter from the Kentucky National Guard Adjutant General, which indicates the decision to upgrade the applicant discharge to honorable was denied, documents from his separation packet, a copy of his military personal record to include a copy of his 15-6 investigation (96 pages), developmental counseling forms (4), and a copy of the NGB Form 22 for the period of service under review. POST-SERVICE ACTIVITY: None provided by the applicant. REGULATORY AUTHORITY: National Guard Regulation (NGR) 600-200 and Army Regulation 135-178, govern procedures for the administrative separation of enlisted personnel of the Army National Guard and the Army Reserve. Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard and Chapter 12, AR 135-178 for members of the Army Reserve by reason of misconduct. Paragraph 6-35i(1), the 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. 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. 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 available record of service and 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 applicant’s available record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, based on the documents submitted by the applicant it appears 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 fully honorable discharge. The applicant's record of service was marred by an Article 15 for going AWOL, misconduct during training, failing to following order, and failing to restrain from contacting DFAS in reference to a bonus. 3. The applicant contends the discharge was unjust because of racial injustice, racial discrimination, and reprisal for his testimony against three noncommissioned officers. 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 Articles 15 and numerous other acts of misconduct 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. 4. The applicant contends that as a result of his discharge the Kentucky National Guard is trying to make him repay his reenlistment bonus. However, this issue does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 5. Furthermore, 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. 6. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. BOARD DETERMINATION AND RECOMMENDED ACTION: After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on his combat service and his testimony, and as a result it is inequitable. Accordingly, the Board recommends the applicant be considered for a change of his discharge by the Adjutant General, States of Kentucky, with issuance of a new NGB Form 22a, to reflect the characterization of service as general, under honorable conditions. The Board determined the reason for discharge was both proper and equitable, and voted not to recommend a change. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 12 January 2015 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: The applicant submitted no additional documents, and presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 5 No Change: 0 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new NGB Form 22: Yes Change Characterization to: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: No Change Other: Thru: Chief, National Guard Bureau Date: 21 January 2015 To: Adjutant General, State of Kentucky The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in Page 1, recommends the applicant be considered for a change of his discharge by the Adjutant General, State of Kentucky, with issuance of a new NGB Form 22a, as follows: (X) Change characterization of discharge to General, Under Honorable Conditions. Remarks: This action also entails a change to the applicant's discharge from the Reserve of the Army to reflect a characterization of service of general, under honorable conditions. ARBA Promulgation Team is directed to ensure the applicant's discharge from the Reserve of the Army reflects the aforementioned change. 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) AR20140017486 Page 2 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1