IN THE CASE OF: BOARD DATE: 19 June 2015 CASE NUMBER: AR20140004328 ___________________________________________________________________________ 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 improper. The evidence indicates the applicant requested an administrative separation board and was entitled to one because he was recommended for a characterization of service of under other than honorable at the time of initiation of the separation action. An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board and did not waive it either. Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. 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 general, under honorable conditions to honorable. 2. The applicant states, in effect, his discharge was inequitable because it was based solely on previously recorded incidents, which were used during discharge proceedings and no new incidents occurred before that. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 March 2014 b. Discharge received: General, Under Honorable Conditions c. Date of Discharge: 15 August 2013 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14, paragraph 14-12b, JKA, RE-3 e. Unit of assignment: B Trp, 1st Sqd, 71st Cav Rgt, 1st BCT (R) (P), Fort Drum, NY f. Current Enlistment Date/Term: 19 July 2011, 3 years g. Current Enlistment Service: 2 years, 28 days h. Total Service: 2 years, 28 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 19D10, Cavalry Scout m. GT Score: 92 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 July 2011, for a period of 3 years. He was 20 years old at the time and a high school graduate. He was serving at Fort Drum, NY when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 24 June 2013, 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 of a pattern of misconduct. Specifically for the following offenses: a. failing to report to his appointed place of duty, b. violating his restrictions, c. adultery, d. pointing his weapon at PFC C and threatening to shoot SGT H., e. losing his military drivers license, and f. failing to adhere to the uniform standards according to AR 670-1. 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 27 June 2013, the applicant consulted with legal, was advised of the impact of the discharge action and requested consideration of his case by an administrative separation board. The applicant submitted 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 an under other than honorable conditions discharge. 4. On 16 July 2013, 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 15 August 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 6. The applicant’s record contais no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, imposed on 3 May 2012, for failure to go at the time prescribed to his appointed place of duty x 4 (111213, 120109, 120319, and 120413). The punishment consisted of reduction to the grade of E-1, forfeiture of $745.00 pay for two months (suspended), extra duty and restriction for 45 days, and an oral reprimand (FG). 2. Report of Mental Status Evaluation, dated 11 March 2012, shows the applicant was diagnosed with an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. The Behavioral Health Provider indicated the applicant meet diagnostic criteria as evidenced by the development of emotional (lack of energy, low mood) and behavioral (impulsivity, aggressiveness) symptoms in response to occupational stressors. 3. The Report of Mental Status Evaluation, also noted that the applicant experienced persistent symptoms that result in interference with effective military performance. The applicant's behaviors/symptoms were of sufficient severity to interfere with the applicant's ability to function in the military and were related to and/or contributing to reason for his separation. The applicant had undergone behavioral health treatment since July 2012 with continued symptoms. Resolution of the applicant's behavioral health symptoms would not occur in an expeditious manner. It was recommended the applicant be administratively separated IAW Chapter 5-17, AR 635-200 for Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. 4. Military Police Report dated 14 February 2013, which shows the applicant was the subject of investigation for a behavioral health incident. 5. Several negative counseling statements dated between 13 December 2011 and 30 April 2013, for his monthly performance, having sexual relations with a female other than his wife, informing him he was being barred from reenlistment, events involving mental health and his hospital visits, commanders lawful order for post restriction/disobeying a lawful order, financial stability, being out of ranks, drinking alcohol while on medication, traffic violation, failure to report, failing to obey an order or regulation, failing to pass diagnostic and record APFT, loss of military ID Card, driver's license, and TA-50, not being at his appointed place of duty, recommendation for Chapter 13 actions, being unprepared for clearing housing, recommendation for UCMJ action, lack of spousal support, and failing to shave. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 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. 2. After a careful review of all the applicant’s military records, the issues, and documents submitted with the application, the discharge appears to be improper. 3. The evidence of record confirms that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board based on a recommendation for his characterization to be under other than honorable conditions by his unit commander and other members of his chain of command at the time of initiation of separation action. An administrative separation board is a right and required under the provisions of Army Regulation 635-200. The record reflects that the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper. 4. The records show the proper discharge and separation procedures were not followed in this case. 5. Therefore, the discharge being improper, the analyst recommends the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF." This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. 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: 5 No Change: 0 Reason Change: 5 No Change: 0 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Secretarial Authority Change Authority for Separation: AR 635-200, Chapter 5-3 Change RE Code to: NA Grade Restoration to: NA Other: Change SPD code to JFF 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) AR20140004328 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1