IN THE CASE OF: Mr. BOARD DATE: 5 November 2014 CASE NUMBER: AR20140000237 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the length and quality of the applicant’s 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 honorable. However, 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 characterization from general, under honorable conditions to honorable. 2. The applicant states, in effect, there was a failure to follow procedures in AR 600-200, Chapter 14-12b, paragraph 2, b, “14-12b, the Soldier must transfer once with at least two months of duty in each unit between battalion size or larger units.” In a statement by Captain G “his initial assessment was one of a positive one.” In January 2012, was the turning point for SPC Rose. In his opinion he doesn’t see how PTSD relates to such a significant pattern of SPC Rose just always seeming to find trouble. “MEB 2012 was initiated for symptoms of PTSD and the MEB narrative page 3, impact on duty performance, page 5, recommendations VA C&P examination dated 26 November 2012, medications required, initial onset of symptoms 2011, which is prior to incidents used to base his discharge under Chapter 14-12b. 3. He wants the board to read the cognitive impairments and other residuals, page 8. Captain G is not a medical physician. He took upon himself not to complete the MEB and the PEB which was in placed and initiated and due to being MEB for all the same issues that are being used to discharge him. He feels an honorable discharge is required. There is an administrative error, the transfer never happened, continuation of the MEB and PEB process did not happen, medications required where not taken into consideration; MEB findings were not used at the summary proceedings; and finally the exact same issues; anger management, irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack, of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability here used to discharge him under honorable conditions (general) instead of following through with the initiated MEB and PEB process. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 December 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 1 July 2013 d. Reason/Authority/SPD/RE: Pattern of Misconduct, Chapter 14, paragraph 14-12b, JKA, RE-3 e. Unit of assignment: Forward Support Company, 19th Engineer Battalion, Fort Knox, KY f. Current Enlistment Date/Term: 12 June 2010, NIF g. Current Enlistment Service: 3 years, 20 days h. Total Service: 12 years, 3 months, 24 days i. Time Lost: None j. Previous Discharges: USAR 010221-010307/NA RA 010308-040307/HD USARCG 040308-050127/NA RA 050128-100611/HD k. Highest Grade Achieved: SGT/E-5 l. Military Occupational Specialty: 92F10, Petroleum Supply Specialist m. GT Score: 100 n. Education: HS Grad o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan x2 (100503-110307), (080605-090106) q. Decorations/Awards: ARCOM-2, AAM-6, AGCM-3, NDSM, ACM-2 CS, GWOTEM, GWOTSM, ICM-CS, NPDR, ASR, OSR-2, CAB JMUA r. Administrative Separation Board: Yes s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he enlisted in the Army Reserve on 21 February 2001, for 8 years and requested to come on active duty effective 8 March 2001, for a period of 3 years. After completion of his tour of duty he was transferred to the US Army Control Group and subsequently came back on active duty on 28 January 2005, and reenlisted on 12 June 2010. He was 23 years old at the time and a high school graduate. He served 3 years and 20 days of military service during the period of service under review and had a total of 12 years, 3 months, 24 days. His record shows he was awarded an ARCOM, AAM, AGCM, and the CAB. He served two combat tours in Afghanistan. When his discharge proceedings were initiated he was serving at Fort Knox, KY. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 17 January 2013, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct; specifically for: a. On 11 January 2013, he received a Company Grade Article 15 for selling his TA-50 equipment of a value of about $2, 796.15, military property, to various pawn shops in violation of Article 108, UCMJ. b. On 17 September 2012, he received a Field Grade Article 15 for violating Articles 86 UCMJ and 91, UCMJ for failing to report to 0600 accountability formation on 8 and 13 June 2012, and for being disrespectful to a noncommissioned officer, by saying to a noncommissioned officer: "not to hide behind his rank boy" and "get out of his way boy". c. On 26 November 2012, he was counseled for disrespecting a noncommissioned officer and for threatening a noncommissioned officer. He was counseled for failing to report to his prescribed place of duty on the following dates: 26 November 2012 and 9 April 2012; and for missing a dental appointment on 9 April 2012. He was counseled again for disrespecting a noncommissioned officer on 20 November 2012. d. On 26 November 2012, he was counseled for failing to follow orders and failing to maintain proof of insurance (second time, the first time was on 19 November 2012) and on 26 October 2012, you were counseled for being disruptive in an Intensive Outpatient Program. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and informed the applicant of his rights. 3. On 22 January 2013, 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 own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed discharge action and recommended approval with issuance of an under other than honorable conditions discharge. 4. On 21 February 2013, the applicant was notified to appear before an administrative separation board and advised of his rights. The board met; the applicant appeared with counsel. The board recommended the applicant be separated from the Army with a general, under honorable conditions discharge. 5. On 15 May 2013, the Medical Evaluation Board Convening Authority forwarded a copy of the approved (MEB) proceedings to the General Court-Martial Convening Authority (GCMCA). 6. On 11 June 2013, the separation authority (GCMCA) reviewed the administrative separation action and the medical disability pertaining to the applicant and determined that the level of misconduct warranted administrative separation instead of processing through the physical disability system. The (GCMCA) approved the administrative separation; waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 7. On 1 July 2013, the applicant was separated under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3. 8. The applicant’s record does not show any time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows: a. On 17 September 2012, for failing to go to his appointed place of duty (120608), (120613) and were disrespectful in language toward SSG S, a noncommissioned officer (120726). His punishment consisted of reduction to Specialist (E-4), forfeiture of pay in the amount of $300.00 per month for two months, (suspended), and extra duty for 45 days (FG). b. On 11 January 2013, for allowing without proper authority, willfully suffer TA-50 equipment of a value of about $2,796.15, military property of the United States, to be sold to Joe surplus store, City Pawn and Cheap Treasures (121016). His punishment consisted of reduction to Private First Class (E-3), extra duty and restriction for 10 days (CG). 2. There are several negative counseling statements dated between 9 April 2012 and 26 November 2012, for failing to make appointments, disrespecting and threatening a noncommissioned officer, absent from his place of duty and failing to follow instructions, selling Organization Clothing and Individual Equipment, failing to follow orders, failing to present proof of insurance and driving without insurance, an EEO Complaint which was upheld against the him, absent without leave, retrain resiliency module 3 and failing to report. 3. An Army Substance Abuse Program (ASAP) Enrollment Form dated 20 December 2012. 4. A Mental Status Evaluation dated 16 November 2012, which indicated the applicant understood and could participate in administrative proceedings and appreciate the difference between right and wrong. The applicant was cleared to return to his unit and to follow up with his Psychiatrist to be scheduled for therapy. The applicant was currently in the MEB process. 5. A Mental Status Evaluation dated 20 December 2012, which indicated the applicant in reference to his behavior; he was manipulative, and his impulsivity; frequently impulsive. He was diagnosed; AXIS 1; PTSD, MDD, ADHD and Polysubstance Abuse. He was instructed to attend all of his follow-up appointments. Further, he was referred to the Alcohol Substance Abuse Program (ASAP) and it was noted by the Psychiatrist that the applicant has multiple behavioral health issues which are not likely to resolve themselves in the next year. 6. Several NCOERs for the period of 12 June 2010 through 27 December 2011, where the applicant was rated as fully capable, 2/1 and 2/2, successful/superior, and an NCOER for the period of 28 December 2011 through 10 September 2012, where the applicant was rated as poor/poor, 5/5. 7. 11 June 2013, Memo from the CG acknowledging he received and considered the applicant's MEB results and directed a separation under the provisions of Chapter 14-12B. 8. August 2012, Report of Investigation (AR 15-6) into an EO complaint against the applicant. EVIDENCE SUBMITTED BY THE APPLICANT: DD Form 214 dated 1 July 2013, DD Form 214 dated 7 March 2004, MEB dated 15 January 2013, Summary of Proceedings UP of AR 635-200, Chapter 14. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining 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 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 repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice, several negative counseling statements and a negative NCOER evaluation. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant contends there was a failure to follow procedures in AR 600-200, Chapter 14-12b, paragraph 2, b, “14-12b, the Soldier must transfer once with at least two months of duty in each unit between battalion size or larger units.” In a statement by Captain G “his initial assessment was one of a positive one.” However, AR 635-200, paragraph 1-16d (2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. 5. The applicant contends in a statement by Captain G “his initial assessment was one of a positive one.” In his opinion he doesn’t see how PTSD relates to such a significant pattern of SPC Rose just always seeming to find trouble. “MEB 2012 was initiated for symptoms of PTSD and the MEB narrative page 3, impact on duty performance, page 5, recommendations VA C&P examination dated 26 November 2012, medications required, initial onset of symptoms 2011, which is prior to incidents used to base his discharge under Chapter 14-12b. 6. The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 16 November 2012, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant’s chain of command determined that although he was suffering from PTSD and being treated by competent medical authority, he knew the difference between what was right and wrong as indicated by the mental status evaluation. Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Further, there are many Soldiers with the same condition that completed their service successfully. 7. Additionally, the Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record. 8. In concluding; the separation authority (GCMCA) reviewed the administrative separation action and the medical disability pertaining to the applicant and determined that the level of misconduct warranted administrative separation instead of processing through the physical disability system. The (GCMCA) approved the administrative separation; waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 9. The record contains no evidence of arbitrary or capricious actions by the applicant’s command, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 10. Records show the proper discharge and separation authority procedures were followed in this case. 11. 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 and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the length and quality of the applicant’s 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 honorable. However, 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: Records Review Date: 5 November 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 4 No Change: 1 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: Honorable 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 UOTH - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR 20140000237 Page 9 of 9 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1