IN THE CASE OF: BOARD DATE: 2 May 2014 CASE NUMBER: AR20140004319 ___________________________________________________________________________ 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 discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, he was unfairly discharged. He did not have any trouble or problems until he got married, which contributed to him failing to perform his duties satisfactorily. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 4 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 29 December 2009 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: HHT, 16th Cavalry Regiment, Fort Knox, KY f. Current Enlistment Date/Term: 26 November 2008, 5 years g. Current Enlistment Service: 1 year, 1 month, 4 days h. Total Service: 3 years, 9 months, 23 days/block 12e on the DD Form 214 total prior inactive service, is incorrect and should read 1 year, 1 month, 14 days, see enlistment contract. i. Lost time: None j. Previous Discharges: USAR (060307-070801)/NA RA (070802-081125)/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92Y10, Unit Supply Specialist m. GT Score: 90 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ARCOM, NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he enlisted US Army Reserve on 7 March 2006, for a period of 8 years. He was 19 years old at the time of entry with a GED. He was discharged on 1 August 2007; the characterization of service was not in the file. He enlisted in the Regular Army on 2 August 2007 for a period of 3 years and 10 weeks. He was 20 years old at the time of entry. He was trained in and awarded military occupational specialty (MOS) 92Y10, Unit Supply Specialist. His last enlistment on 26 November 2008 was for 5 years. His record does not show that he served in combat, but he earned an ARCOM; and he achieved the rank of SPC/E-4. He was serving at Fort Knox, KY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 3 December 2009, 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 of misconduct (serious offense), for receiving a Field Grade Article 15 willfully disobeying a lawful order from a noncommissioned officer (091106). 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 4 December 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his 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 11 December 2009, 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 29 December 2009, 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), with 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 6 November 2009, for willfully disobeying a lawful order from a noncommissioned officer, 1SG M (091013); the punishment consisted of reduction to E-3, forfeiture of $929 pay x 2 months (suspended), extra duty for 30 days, and restriction for 30 days, (FG). 2. On 23 November 2009, the suspension of punishment of forfeiture of $929 pay x 2 months was vacated for the new offense of without authority, failing to go at the time prescribed to his appointed place of duty (091116). 3. An Article 15, dated 31 August 2009, for without authority, failing to go at the time prescribed to his appointed place of duty (090822); and being disrespectful in deportment toward a noncommissioned officer, SFC J (090824); the punishment consisted of extra duty for 13 days, (Summarized). 4. An Article 15, dated 28 October 2008, for unlawfully striking SPC G on his face with a closed fist (080713); and unlawfully choking SPC G with his hands (080713); the punishment consisted of reduction to E-2 (suspended), forfeiture of $352 pay (suspended), extra duty for 14 days, and restriction for 14 days, (CG). 5. The applicant received four negative/monthly counseling statements, dated between 7 November 2008 and 19 November 2009, for failing to report on numerous occasions, monthly counseling October/November 2008, and failing to perform his duties. 6. Two DA Forms 2823 (Sworn Statement), both dated 7 October 2009 gave accounts of the applicant was driving on a suspended license. 7. Memorandum, suspension of installation driving privileges, dated7 October 2009 indicated the applicant’s driving privileges was suspended for 24 months. 8. A MEDCOM Form 699-R (Report of Mental Status Evaluation), dated 3 December 2009, indicated the applicant was diagnosed with an intermittent explosive disorder; mood disorder, not otherwise specified (NOS). The applicant was evaluated due to being released from the hospital after undergoing inpatient treatment. The applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative or judicial proceedings. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293. POST-SERVICE ACTIVITY: The applicant did not provide any information with 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 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 (serious offense), the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by four Articles 15, a vacation of punishment, two sworn statements, several negative counseling statements, and a suspension of installation driving privileges. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant contends he was unfairly discharged. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. 5. Further, 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. The applicant also contends he did not have any trouble or problems until he got married, which contributed to him failing to perform his duties satisfactorily. While the applicant may believe his marital problems was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 7. 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: 2 May 2014 Location: Washington, DC Did the Applicant Testify: No Counsel: None 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 RE Code to: No Change Grade Restoration to: NA Change Authority for Separation: No Change 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) AR20140004319 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1