IN THE CASE OF: Mr. BOARD DATE: 8 August 2014 CASE NUMBER: AR20140006552 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, and the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service and awards, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was both proper and equitable and voted not to change it. 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, the discharge was unjust. He contends that he served honorably for over three years. He desires to obtain his United States citizenship. He contends he was denied use of the Open Door Policy prior to his discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 9 June 2008 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-4 e. Unit of assignment: B Co, 2d Bn, 22d Infantry Regiment, Fort Drum, NY f. Current Enlistment Date/Term: 12 January 2005 /3 years, 19 weeks g. Current Enlistment Service: 3 years, 4 months, 28 days h. Total Service: 3 years, 5 months, 27 days i. Time Lost: None j. Previous Discharges: DEP, 041213-050111, NA k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B1O, Infantryman m. GT Score: 103 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (050811-060801), (070905-080525) q. Decorations/Awards: AAM, NDSM, GWOTSM, CIB, ASR, OSR, ICM-2BS r. Administrative Separation Board: Waived s. Performance Ratings: N/A t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 12 January 2005 for a period of 3 years and 19 weeks. He was 25 years old at the time of entry and a high school graduate. He served in Iraq, earned an AAM and completed 3 years, 5 months, and 27 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Drum, New York. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 12 May 2008, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, for pattern of misconduct. Specifically for failing to report to the appointed place of duty at the prescribed time on numerous occasions, disobeying a lawful order from a noncommissioned officer, and disrespect towards a noncommissioned officer. 2. Based on the above pattern of misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 10 May 2008, the applicant entered into an agreement for alternate disposition in lieu of court martial 4. On 12 May 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and indicated that he would submit a statement in his own behalf. On 13 May 2008, the applicant’s counsel provided a statement in support of a general, under honorable conditions characterization of service. 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. 5. On 16 May 2008, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 6. The applicant was separated on 9 June 2008, under Army Regulation 635-200, Chapter 14-12b for pattern of misconduct, with a characterization of service of under other than honorable conditions discharge, an SPD code of JKA, and an RE code of 4. 7. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Discharge Order Number 155-1007, dated 3 June 2008, United States Army Installation Management Command, Fort Drum, New York, discharged the applicant from the Regular Army effective 5 June 2008. 2. Amendment Order Number 157-1000, dated 5 June 2008, United States Army Installation Management Command, Fort Drum, New York, changed date of discharge from 5 June 2008 to 9 June 2008. 3. DA Form 3822-R (Report of Mental Status Evaluation), dated 13 May 2008, reflects the applicant was evaluated as requested by the unit commander for a Mental Status Evaluation for Chapter 14-12b separation. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 3 April 2014, with all listed enclosures, a self-authored statement, 10 April 2014, and a DD Form 214 covering the period of service under review. POST-SERVICE ACTIVITY: None provided with the 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. 2. After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. Length and quality of service: The applicant served 3 years, 4 months, and 27 days of a 3-year 19-week enlistment, thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically an AAM, a CIB, and ICM with two Bronze Stars for two tours in combat. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 8 August 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None Witnesses/Observers: No Board Vote: Character Change: 3 No Change: 2 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: General, Under Honorable conditions 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) AR20140006552 Page 4 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1