IN THE CASE OF: Mr. BOARD DATE: 7 April 2014 CASE NUMBER: AR20130011446 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service 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 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 discharge from under other than honorable conditions to honorable and a change to the narrative reason for separation. 2. The applicant states through counsel, in effect, the following issues: Issue 1: The specific allegations for which the proposed separation action based on was false and not factual matters, which his unit commander should have known at the time. Issue 2: The commander’s report contained numerous misstatements of facts. Issue 3: The punishment imposed and the developmental counseling conducted during the 6 month period January–June 2007 do not in any manner appear to reflect the command’s knowledge of the applicant’s mental health at the time. Issue 4: The punishment imposed and the developmental counseling conducted during the 6 month period January–June 2007 shows a clear and refutable record of a least one falsified counseling statement as well as unlawful punishment by the command. Issue 5: The administrative separation board convened in the applicant’s case did not comply with AR 635-200. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 11 June 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 8 January 2008 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct , AR 635-200, Chapter 14 paragraph 14-12b, JKA, RE-3 e. Unit of assignment: Sensor Battery, 3-29th Field Artillery, 3rd Brigade Combat Team, Fort Carson, CO f. Current Enlistment Date/Term: 24 October 2006, 6 years g. Current Enlistment Service: 1 years, 2 months, 15 days h. Total Service: 3 years, 1 months, 16 days i. Time Lost: None j. Previous Discharges: RA-(041123-061023)/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 13R10, Field Artillery Fire Finder Radar Operator m. GT Score: 103 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (051202-061028) q. Decorations/Awards: ARCOM, NDSM, ICM, GWOTSM, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 23 November 2004, the period of service was not in the file. He was 21 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 13R10, Field Artillery Fire Finder Radar Operator. He reenlisted on 24 October 2006, for a period of 6 years and was 23 years old. His record also shows he served a combat tour, earned an ARCOM and he achieved the rank of SPC/E-4. He was serving at Fort Carson, CO when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 30 July 2007, the unit commander, notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct. Specifically for the following offenses: a. insubordinate conduct towards a warrant officer, noncommissioned officer, or petty officer b. assault consummated by battery c. failing to pay just debts d. failing to obey an order or regulation e. being drunk on duty f. drunken or reckless operation of a vehicle g. disrespecting toward a superior commissioned officer h. failing to repair on numerous occasions 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 5 September 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board and did not submit a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate and senior commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge. 4. On 3 October 2007, the applicant was notified to appear before an administrative separation board and advised of his rights. On 9 October 2007, the applicant was notified of the change in the board date. 5. The administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions. 6. On 28 December 2007, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 7. The applicant was discharged from the Army on 8 January 2008, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 8. 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 16 May 2007, for without authority, failing to go at the time prescribed to his appointed place of duty (070430); and breaking restriction x 2 (070415, 070429); the punishment consisted of forfeiture of $300 pay, extra duty for 14 days and restriction for 14 days, (CG). 2. An Article 15, dated 4 April 2007 for with intent to deceive, made a false official statement to a SSG N, SSG S, and a SFC G (061213); with intent to deceive, making a false official statement to a SSG N (070116); committing an indecent act upon Ms. S, a person not his wife by rubbing her right breast with his left hand, with intent to gratify his sexual desires (051022); without proper authority, willfully damaging the barracks room door of SPC E by prying it open, military property of the United States (070206); wrongfully appropriated a class A uniform, of a value over $100.00, the property of SPC E (070206); the punishment consisted of reduction to E-1, forfeiture of $650 pay x 2 months, extra duty for 14 days and restriction for 14 days, (FG). 3. A DA Form 3822-R (Report of Mental Status Evaluation), dated 13 September 2007, which indicated the applicant was psychiatrically cleared for administrative separation. 4. He received several negative counseling statements which were completed between 19 January 2007 through 19 June 2007, for failing to report on more than one occasion, failing to follow instructions, failing to report, destruction of government property, larceny, burglary, making false official statements, insubordinate conduct on numerous occasions, late for duty several times, disobeying an order or regulation on more than one occasion, breaking restriction numerous times, being recommended for Chapter 14-12b, and lying to a NCO. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a new DD Form 293, which referenced additional documents 2 through 4, additional documents 2 (83 pages), additional documents 3 (84 pages), and additional documents 4 (73 pages), Power Point Briefing with five issues, Exhibit 1, S L. convert e-mail, Exhibit 2, S L. convert letter, Exhibit 3, applicant’s letter, Exhibit 4, polygraph, Exhibit 5, CWD medical record, fall on ice, Exhibit 6, statement of Ms. R.A.D, Exhibits 7a-c, ERBs , pages 1-75, Exhibit 7d, final section, pages 76 through 107, Exhibits 8a-d, medical records, Exhibits 9, original enlistment documents, Exhibit 10, first psychology appointments and medications, Army Military Human Resource Record (AMHRR), (106 pages), medical documentation, (107 pages), and Army Discharge Review Board Briefing, (200) pages. POST-SERVICE ACTIVITY: The applicant did not provide any 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. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered. However, after examining his military record and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or and a change to the narrative reason for separation. 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 two Articles 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 requested a change to the narrative reason for separation. However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. The regulation further stipulates that no deviation is authorized. A Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. 5. Issues 1 and 2 rejected: 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 issue that he was unjustly discharged. 6. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. 7. Issues 3 and 4 rejected: Before initiating discharge proceedings, the command ensured the applicant was appropriately counseled regarding his deficiencies which could lead to separation. The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. 8. Also, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. 9. Issue 5 rejected: The evidence of record shows the separation authority directed that an administration separation board convene to decide whether the applicant should be discharged for a pattern of misconduct. The Board convened and unanimously determined there was sufficient evidence for the basis for separation and unanimously recommended the applicant be discharged from the Army with a characterization of service of under other than honorable conditions. 10. Additionally, regardless of the facts of the case, the applicant was notified he would receive an under other than honorable conditions discharge, which entitled him to an administrative separation board under provision of AR 635-200. 11. The applicant’s statement alone does 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. 12. The records show the proper discharge and separation authority procedures were followed in this case. 13. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. BOARD DETERMINATION AND DIRECTED ACTION After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service 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 proper and equitable and voted not to change it. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 7 April 2014 Location: Washington, DC Did the Applicant Testify: Yes Counsel: yes [redacted] Witnesses/Observers: Witness [redacted] - Psychologist DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted no additional documents or contentions. 2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant and witnesses at the personal appearance hearing. 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: Yes 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) AR20130011446 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1