IN THE CASE OF: BOARD DATE: 19 June 2015 CASE NUMBER: AR20140006192 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the applicant's length and quality of his service including his combat service were not significantly meritorious to overcome the seriousness of the misconduct that caused his separation from the Army, and as a result the discharge was found to be proper and equitable. The Board further 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 an upgrade of his under other than honorable conditions discharge to honorable. 2. The applicant states, in effect, he plead guilty to the false allegations to prevent confinement. The applicant contends, his ex-wife has caused stress on him that distracted him from concentrating on soldiering and getting promoted, with the sole purpose of destroying his career by telling lies to his chain of command. The applicant contends, he has sleep apnea, hearing loss, depression, PTSD, anxiety, knee problems, lower back problems, and hypertension as a result of his military service. The applicant states, he is attending Strayer University in pursuit of a bachelor’s degree, maintaining a 3.07 GPA. The applicant states, he would like an upgrade to seek better employment opportunities and access to VA benefits for him and his children. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 7 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 21 December 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-4 e. Unit of assignment: A Company, 2d Battalion, 19th Infantry Regiment, 198th Infantry Brigade, Fort Benning, GA f. Current Enlistment Date/Term: 26 January 2010/5 years g. Current Enlistment Service: 2 years, 10 months, 26 days h. Total Service: 17 years, 3 months, 10 days i. Time Lost: None j. Previous Discharges: RA, 950517-971223, HD RA, 971224-010131, HD RA, 010201-100125, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 92Y10, Unit Supply Specialist m. GT Score: 90 n. Education: HS Graduate o. Overseas Service: Korea, SWA, Germany, Balkans p. Combat Service: Yugoslavia (010511-011118) Iraq (040208-050210), q. Decorations/Awards: ARCOM-2, AAM-8, AGCM-5, KDSM, GWTEM, GWTSM, NOPDR, ASR, OSR-3, KCM-BSS, NATO MDL r. Administrative Separation Board: Waived s. Performance Ratings: Yes t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 12 September 1995, for a period of 3 years. He was 20 years old at the time of entry and a high school graduate. He reenlisted in the Regular Army on 26 January 2010, for a period of 5 years. He served in Germany, Iraq, Korea, and the Balkans. He earned two ARCOMs and eight AAMs and completed 17 years, 3 months, and 10 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Benning, Georgia. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 13 July 2012, the applicant consulted with legal counsel and in a court-martial that was pending he offered to plead guilty to all of the charges and their specifications; to accept an under other than honorable conditions discharge in the action initiated to separate him pursuant to AR 635-200, chapter 14-12 and to waive his right to an administrative separation board. 2. On 29 November 2012, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct (serious offense). Specifically for the following offenses: a. stealing military property (family separation allowance) of a value of more than $500 (101007-110229), b. stealing military property (dislocation allowance and dependent per diem entitlements) of a value of more than $500 (111115), c. with intent to deceive, signed a false official document (DA Form 1351-2) (111115), and d. wrongfully and bigamously married another woman while still being married (120127). 3. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 4. On 29 November 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consulting counsel and representation by military counsel and 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. 5. On 5 December 2012, the Staff Judge Advocate reviewed the separation action and opined that the applicant waived his right to an administrative separation board after consulting with legal counsel. 6. On 18 December 2012, the separation authority approved the waiver 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 21 December 2012, with a characterization of service of under other than honorable conditions under the provisions of AR 635-200, Chapter 14-12c, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 4. 8. The applicant’s service record contains no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated 27 March 2006, willfully disobeying a lawful order on divers occasions (060315 and 060313 x3) and being derelict in the performance of his duties (060316). The punishment consisted of a reduction to the grade of E-4 (suspended), forfeiture of $582.00 pay for one month, 14 days of extra duty (suspended), and 14 days of restriction (CG). 2 The record shows that on 8 August 2012, the applicant was found guilty by a summary court-martial of stealing military property of a value more than $500.00 x2, between (101007-110229), (111115), making a false statement (111103), and wrongfully and bigamously married another woman while still being married (120127). He was sentenced to be reduced to the grade of E-4, forfeiture of $1,576.00, and 15 days restriction. 3. One NCOER covering the period of 1 October 2011 to 15 August 2012. The applicant was rated as “Marginal” and received “5/5” from the senior rater. 4. CID Report of Investigation, dated 1 June 2012, reflects the applicant was a subject in an investigation into possible larceny of government funds, bigamy, fraud, and false official statement. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, dated 9 April 2014, a DD Form 149, dated 3 April 2014, and a DD Form 214 covering the period of service under review. 2. Self-authored statement, dated 1 April 2014, states he served on active duty for over 17 years, which included a tour in Iraq. The applicant states, he has medical conditions such as sleep apnea, hearing loss, depression, PTSD, anxiety, knee problems, lower back problems, and hypertension as a result of his military service. 3. Six letters of support, dated between 12 January 2013 and 24 March 2014, from former co-workers. The letters all state the applicant was an outstanding Soldier, dependable, treated everyone with respect and dignity, had a positive attitude, and was a hard worker. The letters also state the applicant was providing financial support, which often times left him with no money for food or gas. 4. Columbia Technical College Certificate, dated 18 June 2013, reflects the applicant successfully completed 36 contact hours of training in retail sales. 5. Strayer University Unofficial Transcript, dated 5 April 2014, reflects the applicant is currently enrolled in the Bachelor of Business Admin Program. POST-SERVICE ACTIVITY: The applicant states, he is attending Strayer University in pursuit of a bachelor’s degree, maintaining a 3.07 GPA. 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 examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. Length and quality of service: The applicant served a total of 17 years, 3 months, and 10 days of creditable military service; thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically 2 ARCOMs and 8 AAMs. c. The applicant’s post-service accomplishments as provided in one of the documents submitted with his application indicates he is seeking self-improvement through attaining higher education. 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 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 that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 5. The applicant contends, he has sleep apnea, hearing loss, depression, PTSD, anxiety, knee problems, lower back problems, and hypertension as a result of his military service. However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 6. The applicant has expressed his desire to have better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, 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. 7. 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 general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the applicant's length and quality of his service including his combat service were not significantly meritorious to overcome the seriousness of the misconduct that caused his separation from the Army, and as a result the discharge was found to be proper and equitable. The Board further determined the reason for discharge was both proper and equitable and voted not to change 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: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change 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) AR20140006192 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1