IN THE CASE OF: Mr. BOARD DATE: 6 February 2015 CASE NUMBER: AR20140003651 ___________________________________________________________________________ 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 characterization to honorable. 2. The applicant states, in effect, his separation was based on false statements, regarding his altercation with another Soldier, made by his enlisted leadership. The applicant contends he was portrayed to higher leadership as being insubordinate, as a result of his refusal to accept illegal punishment from his squad leader. The applicant contends his current benefits, earned through his service in the Army National Guard, are not enough to offset his education expenses. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 November 2007 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: C Company, 4-31 Infantry Regiment, 2d Brigade Combat Team, 10th Mountain Division (Light Infantry), Fort Drum, NY f. Current Enlistment Date/Term: 3 February 2006/3 years, 16 weeks g. Current Enlistment Service: 1 year, 9 months, 13 days h. Total Service: 1 year, 9 months, 13 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 115 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (060815-071027) q. Decorations/Awards: NDSM, GWOTSM, ICM, ASR, CIB 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 3 February 2006, for a period of 3 years and 36 weeks. He was 19 years old at the time of entry and had a GED certificate. He served in Iraq, earned CIB, and completed 1 year, 9 months, and 13 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Drum, New York. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 30 September 2007, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason misconduct (serious offense). Specifically for disobeying lawful orders and showing disrespect toward noncommissioned officers, assaulting a fellow Soldier, and for lost military equipment. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 4 October 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected not to 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. It is unknown when 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 November 2007, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200,Chapter 14, paragraph 14-12c, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated 18 September 2007, failure to lose military property of a value of about $482.00 through negligence (070701), unlawfully assaulting SPC A (070712), disobeying a lawful order (070805), and being disrespectful in language and deportment towards a noncommissioned officer (070805). The punishment consisted of reduction to the grade of E-1 and an oral reprimand (FG). 2. Three negative counseling statements, dated between 12 July 2007 and 30 August 2007, for disrespect towards a noncommissioned officer, failing to properly securing the high value government property, and disobeying a lawful order. 3. DA Form 3822-R (Report of Mental Status Evaluation), dated 26 September 2007, reflects that the applicant had a clear and normal thought process and was mentally responsible. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, dated 16 February 2014, a DD Form 214 covering the period of service under review. 2. A character letter, dated 5 February 2014, written by applicant’s current NCO, SSG C. The letter states the applicant is in good standing and a fine, responsible Soldier, and a true asset to their current unit. 3. DD214 (Certificate of Release or Discharge from Active Duty), dated 18 July 2011, covering the period of service from 31 July 2010 to 23 August 2011. The applicant was released from active duty, with an honorable discharge, as a result of his completion of required active service. 4. Memorandum for Record, dated 4 July 2011, Subject: Statement of Wartime Service, verifies the applicant’s combat service in Afghanistan from 31 October 2010 to 10 July 2011. 5. Permanent Order Number 167-079, dated 16 June 2011, 1st Battalion, 168th Infantry Regiment, Forward Operating Base Gardez, Afghanistan, awards the applicant the Army Achievement Medal, for the period of service 31 July 2010 thru 10 July 2011. POST-SERVICE ACTIVITY: The applicant states, since his discharge, he has done the following: a. joined the Army National Guard (ARNG) and has served in the Iowa and Kansas Honor Guard, b. learned to read, write, and speak the Pashto language for the sake of the mission in Afghanistan, and c. assigned to the gunner position of a M2-ODS SA Bradley; recognized for being a quality Soldier. 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 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 contends that his separation was based on false statements made by his enlisted leadership and portrayed to higher leadership as being insubordinate. However, 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 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. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. 5. The applicant contends his current benefits, earned through his service in the Army National Guard, are not enough to offset his education expenses. 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. 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: 6 February 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) AR20140003651 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1