IN THE CASE OF: BOARD DATE: 29 July 2015 CASE NUMBER: AR20140008006 ___________________________________________________________________________ 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 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 to honorable. 2. The applicant states, in effect, he had been to war for his country, received a score of 325 on his Army Physical Fitness Test (APFT) while he was deployed, and received an Army Good Conduct Medal (AGCM). The applicant contends, he was frustrated because his Warrior Leaders Course (WLC) was pulled three times, which resulted in his misconduct leading to his discharge. The applicant states, he’s matured and would like another chance to prove to himself and his country that he’s worth becoming an NCO. The applicant contends, he was told that his CURORG code must be changed in order for him to reenlist because he still has time left on his second contract. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 November 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: Maintenance Troop, Regimental Support Squadron, 11th Armored Cavalry Regiment, Fort Irwin, CA f. Current Enlistment Date/Term: 17 May 2012/NIF g. Current Enlistment Service: 5 months, 22 days h. Total Service: 4 years, 5 days i. Time Lost: None j. Previous Discharges: RA, 081103-120516, HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 91B10, Wheeled Vehicle Mechanic m. GT Score: 92 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (100315-110301) q. Decorations/Awards: ICM-2CS, ARCOM, AGCM, NDSM, GWTSM, ASR, OSR r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: Yes u. Prior Board Review: N/A SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 3 November 2008, for a period of 3 years and 28 weeks. He was 21 years old at the time of entry and had a GED certificate. He reenlisted in the Regular Army on 17 May 2012, for an unknown period. He served in Iraq, earned an ARCOM, and completed 4 years and 5 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Irwin, California. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 26 September 2012, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct (serious offense). Specifically for; a. being drunk and disorderly, resisting apprehension by a civilian police officer, and b. wrongfully communicating a threat to Detective K and Detective S on 6 November 2011. 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 11 October 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on his own behalf. In the statement, dated 24 October 2012, the applicant states he joined the military “to get away from the stereotype of being a Hispanic in an urban area known for gang activity,” his accomplishments since being in the military, and his ultimate goal to remain in the military and attain the rank of Sergeant. The unit commander subsequently recommended retention in the Army in a memorandum, dated 22 October 2012. The intermediate commander reviewed the proposed action and recommended the applicant be separated from the Army with a general, under honorable conditions discharge. 4. On 7 November 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 7 November 2012, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 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. San Diego County Sheriff’s Department Arrest/Juvenile Contact Report, dated 6 November 2011, reflect the applicant committed the following two offenses (8 pages): a. Obstruct/Resist Peace Ofc/Emer Med Tech, and b. Drunk in Public: Alcohol, Drugs, Combo or Toluene. 2. One negative counseling statement, dated 7 November 2011, for failing to be at his appointed place of duty. 3. An Article 15, dated 15 December 2011, failure to go at the time prescribed to his appointed place of duty on diver’s occasions (111107, 111108, 111109, and 111110). The punishment consisted of a reduction to the grade of E-3 (suspended for 90 days), forfeiture of $455.00 pay (suspended for 90 days), and 14 days of extra duty (CG). 4. A Criminal Intelligence Report, dated 1 March 2012, indicates the applicant was identified by the San Diego Sheriff’s Department (SDSD) as an “Imperials” gang member out of Imperial Beach, California. The report states, the SDSD was dispatched to a possible gang fight on 6 November 2011 where the applicant was subsequently arrested for being drunk in public and resisting arrest. 5. DA Form 3822-R (Report of Mental Status Evaluation), dated 18 June 2012, reflects that the applicant had a clear and normal thought process and was mentally responsible. In Section V, Axis I, the applicant was diagnosed with an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 30 April 2014, and a DD Form 214 covering the period of service under review. POST-SERVICE ACTIVITY: None was 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: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. 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 of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice and a negative civilian report of investigation. 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 he had good service which included a deployment to Iraq, scoring a 325 on his APFT, and receipt of an AGCM. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the documented actions under Article 15 of the Uniform Code of Military Justice. 5. The applicant contends he is entitled to an upgrade of his discharge because of mitigating circumstances which contributed to his misconduct. Specifically, he claims his frustration regarding his WLC packet resulted in his discharge. While the applicant may believe his frustration with his unit was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from his stress and frustration through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 6. The applicant contends, he was told that his CURORG code must be changed in order for him to reenlist. However, the applicant’s requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. If reenlistment is desired, the applicant should continue to contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 7. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 29 July 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) AR20140008006 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1