IN THE CASE OF: Mr. BOARD DATE: 25 October 2013 CASE NUMBER: AR20130007032 ___________________________________________________________________________ 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. Although the applicant did not properly annotate the enclosed application, his request would be considered for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge. 2. The applicant states, in effect, he was not provided the necessary time to participate in ACAP process and was more or less, pushed out of the Army. The ACAP representative informed him that he would have to complete his ACAP process at the nearest military post, which is impossible because he does not have an appropriate ID to get on the military installation due to his status being discharge with a general, under honorable conditions. He would like to use his Post 9/11 GI Bill as he paid for it during the period he was on active duty. All he wants is to use his education benefits to better himself and further his education. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 8 April 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 1 June 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: C Co, 2nd Bn, 505th Parachute Infantry Regiment 3rd Brigade Combat Team, Fort Bragg, NC f. Current Enlistment Date/Term: 7 June 2010, 3 years, 16 weeks g. Current Enlistment Service: 1 year, 11 months, 5 days h. Total Service: 1 year, 11 months, 5 days i. Time Lost: 20 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 11B1P, Infantryman m. GT Score: 87 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; GWOTSM; ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 7 June 2010, for a period of 3 years and 16 weeks. He was 18 years old at the time of entry and a high school graduate. His record documents no acts of valor or significant achievement, and no overseas assignment. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 24 May 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for absenting himself from his unit (120422-120511) and being disrespectful in language and deportment toward an NCO, by yelling and calling him a liar, then hanging up the phone. 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 24 May 2012, the applicant waived consulting with legal counsel, indicated he understood the impact of the discharge action, but did not indicate whether he was submitting 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 28 May 2012, 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 1 June 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant's record shows he was absent without leave (AWOL) during the period 22 April 2012 through 11 May 2012 (20 days). However, there is no record of the applicant’s mode of return. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: There is no counseling statements or UCMJ actions in the record. However, according to the unit commander’s forwarding memorandum, dated 24 May 2012, the applicant received a field grade Article 15, dated 22 May 2012, for absenting himself from his unit and being disrespectful in language and deportment toward an NCO. The punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months, 30 days of extra duty and restriction, oral reprimand, (FG). The Article 15 is not in file. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided none. 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 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 serious incident of 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 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’s contention he was not provided the opportunity to participate in the Army Career and Alumni Program (ACAP) was carefully considered. However, it is determined that the applicant’s contention has no bearing on his discharge, nor would it be considered as sufficient evidence to make a determination upon the applicant's quality of service. By his own statement that he was advised by an ACAP representative, it appears he was provided the pre-separation counseling. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 5. Furthermore, although the applicant did not indicate having issues that affected his behavior and ultimately caused him to be discharged, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 6. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the Post 9/11 GI Bill. However, 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. 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: 25 October 2013 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) AR20130007032 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1