IN THE CASE OF: Mr. BOARD DATE: 14 November 2014 CASE NUMBER: AR20140014246 ___________________________________________________________________________ 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 to his general, under honorable conditions discharge to honorable. 2. The applicant states, in effect, his brother’s murder and his grandmother’s death were stressful, which negatively affected his performance in the Army. The applicant contends he would like to apply for Veterans Affairs (VA) benefits. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 8 August 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 9 January 2002 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: B Company, 1st Battalion, 15th Infantry, 3d Brigade, Fort Benning, GA f. Current Enlistment Date/Term: 7 April 2000/3 years g. Current Enlistment Service: 1 year, 9 months, 3 days h. Total Service: 1 year, 9 months, 3 days i. Time Lost: None j. Previous Discharges: DEP, 000325-000406, N/A k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 99 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR 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 7 April 2000 for a period of 3 years. He was 34 years old at the time of entry and had a GED certificate. He completed 1 year, 9 months, and 3 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Benning, Georgia. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 12 September 2001, 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 of misconduct—commission of a serious offense, for driving under the influence (DUI), failure to report (FTR), and disrespect. In addition, Soldier also received 30 days confinement. 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 12 September 2001, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and elected not to 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 of the separation with a general, under honorable conditions discharge. 4. On 28 November 2001, the separation authority approved the conditional waiver request, 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 9 January 2002, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14-12c, for misconduct, 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 5 February 2001, for failing to go at the time prescribed to the appointed placed of duty (010103) and being disrespectful in language toward an NCO (010103). The punishment consisted of a reduction to the grade of E-1, forfeiture of $243.00 pay per month for one month, 14 days of extra duty and restriction (CG). 2. Numerous negative counseling statements dated between 5 October 2000 and 17 May 2001, for missing movement, disrespect towards an NCO, AWOL, failing to be at the prescribed time at the appointed place of duty, failure to report, DUI, arrested for driving without a license, threatening an NCO, unbecoming of a Soldier, dereliction of duty, showing up to work late, missing formations, disobeying orders, and initiation of separation proceedings. 3. Letter of Reprimand, dated 1 March 2001, for driving while under the influence of alcohol and refusing a lawfully requested test. 4. DA Form 4430-R (Department of the Army Report of Result of Trial), dated 17 July 2001, applicant was found guilty on Charge I (Article 91, disrespect in language toward NCO) and Charge II (Article 86, failure to report). The sentence consisted of forfeiture of $695.00 pay per month for one month and confinement for 30 days. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, dated 5 August 2014, and a DD Form 214 covering the period of service under review. 2. The applicant provided copies of the obituary notices, dates unknown, on his brother and his grandmother. 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 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 documents 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 one Article 15 and numerous counseling statements for multiple 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 brother’s murder and his grandmother’s death affected his behavior and ultimately caused him to be discharged. 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. 5. The applicant contends that an upgrade of his discharge would allow him to apply for VA benefits. 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: 14 November 2014 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) AR20140014246 Page 5 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1