IN THE CASE OF: Mr. BOARD DATE: 12 November 2014 CASE NUMBER: AR20140013730 ___________________________________________________________________________ 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 to honorable. 2. The applicant states, in effect, he was accused of domestic violence while going through a divorce. However, he was found not guilty in a civilian court. He states the Army did not wait for the results of his trial but instead discharged him. He contends he was treated unfairly and judged before given a chance to prove his innocence. He states his wife made several complaints against him and he is surprised that his supervisors believed her since they knew the type of person he was. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 1 August 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 18 March 2011 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3 e. Unit of assignment: Service Support Company, Group Support Battalion, 5th SFG (A), Fort Campbell, KY f. Current Enlistment Date/Term: 8 December 2007/6 years g. Current Enlistment Service: 3 years, 3 months, 11 days h. Total Service: 5 years, 9 months, 6 days (As a note, the DD Form 214 reflects incorrect total service of 5 years, 11 months, 23 days) i. Time Lost: None j. Previous Discharges: DEP, 050613-050622, NA RA, 050623-071207, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 92F10, Petroleum Supply Specialist m. GT Score: 103 n. Education: One year college o. Overseas Service: SWA p. Combat Service: Iraq (090111-090718) (100110-100802) (071019-080505) q. Decorations/Awards: ICM-2CS, JSAM, AGCM, NDSM, GWOTSM, ASR, OSR r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 23 June 2005, for a period of 3 years and 22 weeks. He was 24 years old at the time of entry and had one year of college. He reenlisted on 8 December 2007, for a period of 6 years. He served in Iraq, earned a JSAM and completed 5 years, 9 months, and 6 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Campbell, Kentucky. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 24 February 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct. Specifically for: a. being arrested for domestic violence on 5 November 2006, and given a pretrial diversion for the domestic violence charge; b. being apprehended for traveling off of Ali Al Salem Air Base, Kuwait without proper authorization on 15 May 2010 and 31 May 2010; c. being arrested and charged by the Clarksville Police Department for domestic violence on 22 September 2010; d. violating a military issued no contact order by having verbal communication with his stepdaughter at the commissary on 23 January 2011, and; e. receiving an Article 15 for violating the no contact order. 2. Based on the above pattern of misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 2 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in his own behalf. The applicant’s rebuttal statement was not found in the record. 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 an unknown date, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 18 March 2011, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKA, and an RE code of 3. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Numerous counseling statements, dated between 4 November 2006 and 3 March 2011, for domestic assault x 2 (061106 and 100914), no contact/protection order, pre-separation counseling, separation counseling, being late to formation, failure to inform his chain of command, and initial and monthly performance counselings. 2. Memorandum of Concern, dated 20 July 2010, for altering an off-post authorization while deployed to Kuwait. 3. A No Contact/Protection Order, dated 4 November 2006, for allegations of spouse and child abuse. 4. Judgment Order, General Sessions Court of Montgomery County, Tennessee, dated 4 December 2006, reflects the applicant entered into pretrial diversion for domestic assault, for a term of 11 months and 29 days. 5. Article 15, dated 8 February 2011, for disobeying a lawful order issued by MAJ C to not have any contact with Mrs. M, Ms. M, Ms. P, and Ms. M. The punishment consisted of a reduction to the grade of E-4, forfeiture of $1,115 pay per month for two months (suspended), and 45 days of extra duty and restriction (suspended) (FG). 6. MEDCOM Form 4038 (Report of Mental Status Evaluation), dated 1 February 2011, reflects the applicant had a clear and normal thought process and was mentally responsible. He was diagnosed with an adjustment disorder with disturbance in emotions and conduct. He had negative screen results for Post Traumatic Stress Disorder (PTSD) and mild Traumatic Brain Injury (mTBI). 7. Three NCOERs covering the period of 1 July 2008 through 31 October 2010. The applicant was rated as “Fully Capable” by his raters and received two “2/1” ratings and a “2/2” rating from his senior raters for “Overall Performance/Overall Potential.” EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 28 July 2014, and a DD Form 214. 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, 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 pattern of 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 a FG Article 15 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 he was unfairly discharged because he was found not guilty in civilian court and his chain of command judged him before giving him a chance to prove his innocence. However, the applicant entered into pretrial diversion for a period of 11 months and 29 days. Further, 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 issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated. In fact, the applicant’s FG Article 15 and numerous negative counseling statements justify a pattern of misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 5. The unit commander included in the applicant’s notification letter incidents of misconduct that occurred in a prior term of enlistment. However, AR 635-200 provides that commanders may consider incidents from a prior period of enlistment on the issue of retention or separation. The separation authority’s decision memorandum does not state the prior incident was not considered for the purpose of characterization. However, the presumption of government regularity prevails in the discharge process, as the separation authority cannot consider information from prior periods of service when determining characterization and there is no affirmative indication the separation authority did so. The applicant’s period of service under consideration was marred by a FG Article 15 and several negative counseling statements that justified the characterization of service awarded. 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: 12 November 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Board Vote: Character Change: 2 No Change: 3 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) AR20140013730 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1