IN THE CASE OF: Mr. BOARD DATE: 9 January 2015 CASE NUMBER: AR20140003031 ___________________________________________________________________________ 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 under other than honorable conditions discharge to honorable. 2. The applicant states, in effect, he served his country for six years and was honorably discharged during his first enlistment and served honorably during his reenlistment until he was separated. He contends he has not been in any trouble with law enforcement since the incident for which he was discharged. He also contends this was a isolated incident and was the first time he had been involved with law enforcement and will be his last time. He states he and his wife have reunited and have been together for two years with no further incidents. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 7 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 8 March 2011 d. Reason/Authority/SPD/RE Code: Misconduct (Civil Conviction), AR 635-200, Chapter 14, Section II, JKB, RE-3 e. Unit of assignment: A Battery, 1-7th Field Artillery, Fort Riley, KS f. Current Enlistment Date/Term: 28 December 2008/4 years g. Current Enlistment Service: 2 years, 2 months, 11 days h. Total Service: 11 years, 6 months, 6 days i. Time Lost: 165 days j. Previous Discharges: DEP, 990903-990927, NA RA, 990928-020927, HD ARNG, 020928-050717, NA ARNG, 050718-061114, HD ARNG, 061115-070221, NA RA, 070222-081227, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 13B10, Cannon Crewmember m. GT Score: 87 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq, (081008-090918) q. Decorations/Awards: ARCOM, AAM, MUC, AGCM, NDSM, GWOTSM, KDSM, ICM-CS, ASR, OSR-2, AFRM-M r. Administrative Separation Board: Waived s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 28 September 1999, for a period of 3 years. He was 19 years old at the time of entry and a high school graduate. He transferred to the Army National Guard on 23 August 2005. On 28 December 2008, he reenlisted in the Regular Army for a period of 4 years. He served in Iraq and earned an ARCOM and an AAM. He completed a total of 11 years, 6 months, and 6 days of creditable military service. When his discharge proceedings were initiated, he was serving in Fort Riley, KS. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 26 October 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-5, for conviction by civil court. Specifically for being convicted of one count of domestic battery in the District Court of Geary County, Kansas. As a result of his conviction, he was sentenced to a six month jail sentence. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 28 October 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement in 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 an under other than honorable conditions discharge. 4. On 24 November 2010, the applicant’s conditional waiver was denied and his case referred to an administrative separation board. 5. On 17 December 2010, the applicant again consulted with legal counsel and unconditionally waived consideration of his case by an administrative separation board. 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 an under other than honorable conditions discharge. 6. On 3 March 2011, the separation authority approved the unconditional waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions and a reduction to the lowest enlisted grade. 7. The applicant was separated on 8 March 2011, under Army Regulation 635-200, Chapter 14, Section II, with an under other than honorable conditions discharge, an SPD code of JKB, and an RE code of 3. 8. The applicant's record shows he was AWOL during the period 23 September 2010 through 8 March 2011. The applicant was confined by civilian authorities. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. DA Form 4187 (Personnel Action), dated 23 September 2010, changed the applicant’s duty status from present for duty to confined by civilian authorities. 2. Court Order, dated 23 September 2010, reflects the applicant was convicted of domestic battery. The sentence consisted of six months confinement, with three days credit, a fine of $155 and attorney fees in the amount of $155. 3. A Police Report, dated 21 January 2010, reflects the applicant was the subject of an investigation for domestic battery (physical contact by family member in rude manner), endangering a child (intentional) and criminal damage to property. 4. Several negative counseling statements, dated between 14 November 2007 and 1 September 2010, for lying to an NCO, falsifying a POV inspection form, being arrested for a warrant, failing to pay spousal support x 3 (100726, 100812, and 100901), inappropriate conduct in court, Lautenberg Amendment, failing to be at appointed place of duty, post restriction and failing to pay personal debt. 5. One NCOER covering the period of 1 October 2008 through 30 September 2009, reflects the applicant was rated as “Among the Best” by his rater and received a “2/2” rating for his “Overall Performance/Overall Potential.” EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 3 February 2014, a DD Form 214, and medical records. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his 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. The applicant diminished the quality of his service below that meriting a general or a fully honorable discharge. The applicant’s record of service was marred by a civil conviction and several negative counseling statements. 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 incident that caused his discharge was the first time he had been involved with law enforcement. Although an isolated 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 a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 5. The records show the proper discharge and separation authority procedures were followed in this case. 6. 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: 9 January 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: 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) AR20140003031 Page 4 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1