Applicant Name: ????? Application Receipt Date: 2012/11/15 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he is requesting an upgrade because he is a combat veteran who got into trouble over a phone call. When he returned home he phoned an ex-girlfriend and was arrested for felony harassment domestic violence. He was arrested 5 December 2004 and released from jail on 14 January 2005. While he was in jail he could not perform his duties as an infantryman. His chain of command fought for him to receive a general, under honorable conditions discharge and encouraged him to fight for an honorable discharge because he had never received any negative action prior to being arrested. He is service connected for PTSD due to his yearlong tour in Iraq. He struggles with depression over his separation, because he has always felt he deserved an honorable discharge. He would like to receive his GI Bill and be proud of his service. With his GI Bill he would be able to go to school and give more. He has not been in any trouble since his discharge and would like to finally put his one mistake behind him. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 050408 Discharge Received: Date: 050708 Chapter: 14, SEC II AR: 635-200 Reason: Misconduct RE: SPD: JKB Unit/Location: A Company, 2d Battalion, 3d Infantry Regiment, 3d Brigade (SBCT), 2d Infantry Division, Fort Lewis, Washington Time Lost: AWOL for a total of 40 days (041205 - 050114). The applicant states he was in jail. Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 19 Current ENL Date: 020822 Current ENL Term: 3 Years ????? Current ENL Service: 02 Yrs, 09 Mos, 06 Days ????? Total Service: 02 Yrs, 09 Mos, 06 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 11B10 Infantryman GT: 107 EDU: HS Grad Overseas: SWA Combat: Iraq (031115 - 041028) Decorations/Awards: NDSM, ICM, GWOTSM, ASR, OSRx2, CIB V. Post-Discharge Activity City, State: Post Service Accomplishments: None VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 8 April 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct, for being convicted by a civil court of Felony Harassment-Domestic Violence and being sentenced to be released to community custody for 24 months, with a general, under honorable conditions discharge. He was advised of his rights. On 16 May 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own 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. On 2 June 2005, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. The record contains court proceeding documents from the Superior Court of Washington, King County. b. Legal Basis for Separation: 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. c. Response to Issues, Recommendation and Rationale: After a careful review of the applicant’s available military records, the issues and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The analyst determined 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. By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 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. The analyst acknowledges the applicant's in service accomplishments to include his combat service as stated in his application. However, the analyst did not find this sufficiently mitigating to warrant an upgrade of the discharge under review. The analyst noted the applicant's desire to use the benefits of the GI Bill. 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. The record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and the applicant submitted no evidence to support that the discharge was the result of any medical condition. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. The analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. The applicant contends that since leaving the Army, he has not been in trouble. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. Furthermore, the analyst noted the applicant's successful transition to civilian life as outlined in his application. However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 1 April 2013 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: DD Form 293 and a DD Form 214 VIII. Board Discussion, Determination, and Recommendation 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 to be proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: N/A Other: N/A RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board JOSEPH M. BYERS Lieutenant Colonel, U. S. Army Secretary Recorder ????? 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 UOTH - Under Other Than Honorable Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120021283 ______________________________________________________________________________ Page 1 of 4 pages