IN THE CASE OF: BOARD DATE: 19 June 2015 CASE NUMBER: AR20140004259 ___________________________________________________________________________ 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 that the characterization of service was too harsh based on the quality of the applicant’s service to include his combat service, the circumstances surrounding his discharge, and documentary evidence showing a PTSD diagnosis, and as a result it is inequitable. It is concluded that the aforementioned condition may have been a causative factor in the misconduct that led to the discharge. After carefully weighing that fact against the severity of the applicant’s misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant’s service. 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 both 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant states, in effect, he had several undiagnosed grand mal seizures while serving in Iraq. He also had several seizures during his mid-tour leave which was reported to the rear detachment command. He was informed he would be medically cleared and returned to Iraq. However, without any medical clearance, he refused to return to Iraq and was placed under arrest for missing movement. He was placed in civilian confinement for two months. He feels the disabling condition tainted his service due to the type and manner of his discharge. Subsequently, he was diagnosed with a seizure disorder and VA has also granted him 50 percent service-connected disability for Post-Traumatic Stress Disorder (PTSD). DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 28 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 28 December 2007 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: Home Detachment, 1st Bn, 9th FA, 2nd Bde, Fort Stewart, GA f. Current Enlistment Date/Term: 7 June 2006, 3 years, 19 weeks g. Current Enlistment Service: 1 year, 6 months, 23 days h. Total Service: 1 year, 6 months, 23 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 13D10, Field Artillery Automated Tactical Data Systems Specialist m. GT Score: 97 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (070508-070925) q. Decorations/Awards: NDSM; ICM; GWOTSM; ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 7 June 2006, for a period of 3 years and 19 weeks (note that DD Form 214 reflects an erroneous date entered active duty as 2 June 2006). He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 13D10, Field Artillery Automated Tactical Data Systems Specialist. He served in Iraq. His record documents no other acts of valor or significant achievement. He completed 1 year, 6 months, and 23 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 5 December 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for failing to follow orders from a superior commissioned officer (071106). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 5 December 2007, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action, 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 commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 4. On 18 December 2007, the separation authority 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 28 December 2007, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), 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. Report of Result of Trial indicates on 3 December 2007, the applicant was tried by a summary court-martial for failing to follow a lawful command from a superior commissioned officer, in violation of Article 90, UCMJ. The sentence consisted of a reduction to E-1 and confinement for 30 days. 2. Letter, dated 28 November 2007, subject: [the applicant] Summary Court Martial Offer to Plea guilty, rendered by the applicant’s civilian counsel on his behalf, indicates the applicant’s offer to plead guilty was accepted by the summary court-martial convening authority. 3. Charge Sheet indicates the applicant was charged with violating Article 90, UCMJ, for disobeying a superior commissioned officer (071106). The charge was preferred on 14 November 2007, and referred for trial by a summary court-martial on 28 November 2007. 4. Confinement Order, dated 6 November 2007, indicates the applicant was placed in pretrial confinement for being AWOL (071015-071025) and disobeying a superior commissioned officer. 5. Mental Status Evaluation Report, dated 3 December 2007, indicates the applicant was cleared for any administrations actions deemed appropriate by his command and that he had no mental disorder that warranted disposition through medical channels. 6. There is no negative counseling statement. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement; VA decision correspondence, dated 8 July 2011, and health records, dated September 2007 through October 2008. POST-SERVICE ACTIVITY: The applicant provided none. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 was carefully considered. 2. After examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are mitigating factors to merit an upgrade of the applicant's discharge to honorable for the following reasons: a. The record confirms the applicant served a tour in combat. b. The circumstances surrounding the applicant’s discharge and documentary evidence indicate he had ongoing medical issues while on active duty, and was diagnosed with PTSD by VA and rendered him a service-connected disability for PTSD. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The PTSD evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 5. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 19 June 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA 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: 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 UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20140004259 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1