IN THE CASE OF: BOARD DATE: 10 July 2015 CASE NUMBER: AR20140006548 ___________________________________________________________________________ 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 that follows, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, the circumstances surrounding his discharge, and his significant medical issues mitigated the discrediting entry in his service record. 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. This action entails restoration of grade to E-4/SPC. 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. Counsel requests an upgrade of the applicant’s under other than honorable conditions characterization of service to honorable and a change to the narrative reason for discharge. 2. The counsel states, in effect, the applicant’s discharge was invalid, procedurally improper, and inequitably harsh. The counsel contends, prior to the events leading to the discharge, the applicant had a spotless record. The counsel states, the applicant struggled with depression after his return from deployment, which was exacerbated with the suicide of his closest friend. The counsel contends, once the applicant’s command was aware of the applicant’s struggle, they refocused their efforts on rehabilitating the applicant and requested revocation of the previously submitted discharge proceedings. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 9 September 2011 d. Reason/Authority/SPD/RE Code: Unsatisfactory Participation, AR 135-178 e. Unit of assignment: Detachment 1, 382d Military Police Battalion, Westover ARB, MA f. Current Enlistment Date/Term: 26 August 2005/8 years g. Current Enlistment Service: 6 years, 14 days h. Total Service: 6 years, 14 days i. Time Lost: None j. Previous Discharges: ADT, 050913-060223, HD ADT, 060506-070922, HD (concurrent service) k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 31B10, Military Police m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (060902-070827) q. Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWTSM, ICM, ASR, OSR, AFRM w/device r. Administrative Separation Board: No s. Performance Ratings: N/A t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army Reserve on 26 august 2005 for a period of 8 years. He was 19 years old at the time of entry and a high school graduate. He served in Iraq. He earned an ARCOM, an AAM, and an AFRM with device. He completed 6 years and 14 days of creditable military service. When his discharge proceedings were initiated, he was serving in Westover ARB, Massachusetts. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army Reserve. 2. The available evidence in the record indicates that on 2 September 2011, Headquarters, 99th Regional Support Command, Fort Dix, NJ, Orders number 11-245-00040, discharged the applicant from the Army Reserve, effective 9 September 2011, with an under other than honorable conditions discharge. In addition, the applicant was reduced in grade of rank from SPC to PV1, with an effective date of 2 September 2011. 3. The record contains a properly constituted order which indicates the applicant was discharged under the provisions of AR 135-178, by reason of unsatisfactory participation, with a characterization of service of under other than honorable conditions. 4. The applicant’s available service record contains no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Discharge Order Number 11-245-00040, dated 2 September 2011, 99th Regional Support Command, Fort Dix, New Jersey, discharged the applicant from the United States Army Reserve, effective 9 September 2011. In addition, the applicant was reduced in grade of rank from SPC to PV1, with an effective date of 2 September 2011. EVIDENCE SUBMITTED BY THE APPLICANT: 1. Counsel provided a DD Form 293, dated 14 April 2014, and a copy of the applicant’s discharge orders. 2. Legal brief, undated, authored by Mr. A.F, applicant’s counsel, outlines the applicant’s contentions, military service, and events leading to the discharge (13 pages). 3. Applicant’s affidavit chronicles his military service from basic training, to his deployment, his post deployment struggles, and unexpected discharge from the military (4 pages). 4. Four letters of support, dated between 6 February 2013 and 6 February 2014, from the following individuals: a. LTC(P) O, former S-3 , states the applicant’s under other than honorable discharge (UOTH) “does not, whatsoever, fairly or accurately reflect the character of his overall period of service to this nation.” LTC(P) O states, he believes the applicant’s discharge was “procedurally improper because, upon review of the record, the 412th Theater Engineer Command (TEC) appears to have wrongly/inaccurately denied, then LTC C’s request that the applicant’s discharge order be revoked and that the soldier be retained.” LTC(P) O acknowledged the applicant’s failure to attend battle assemblies and difficulty meeting the Army standards of physical training and the height and weight; however, also notes the applicant returned from combat with problems that led to the misconduct. LTC(P) O strongly believes that the applicant’s overall performance during the period of service under review warrants an upgrade from an UOTH to an honorable discharge (HD) and that the board consider “the unjust/improper manner in which the applicant originally received an UOTH against the recommendation of his first line commander” (2 pages). b. COL C, former battalion executive officer (05-07) and battalion commander (07-11), states he “was unaware of the applicant’s personal problems as his battalion commander and as a result recommended he be discharged under general terms.” Once COL C was made aware of the applicant’s problems and the applicant’s desire to remain in the US Army Reserve (USAR), he recommended the applicant be retained. COL C states he strongly feels an UOTH is a disservice to the applicant; most notably while the applicant was seeking assistance for his personal problems and the facts surrounding his poor performance was unknown to his higher chain of command at the 412 TEC. COL C strongly feels the applicant should be granted an HD (2 pages). c. SFC F, former detachment sergeant, states the unit had begun processing paperwork to discharge the applicant from the USAR following several months of missed drills. It was not until the applicant returned to the unit in February 2011 that SFC F was made aware of the applicant’s struggles with severe depression, lack of a family support system, and his difficulties with coping with his increased responsibilities. SFC F, along with the brigade command sergeant major (CSM), met with the applicant to discuss a plan to seek counseling and to lose weight. SFC F states he was to annotate the applicant’s progress and report his findings back to the CSM. SFC F states the applicant was initially “fearful of talking about his issues with a stranger.” However, SFC F stressed to the applicant that he needed to overcome his fears and get help that the Army can provide. SFC F states the applicant was making progress, both mentally and physically. SFC F informed the applicant the request to discharge him was rescinded. SFC F states, “we aided him, and showed him that we cared, then discharge orders showed up at his house, and we cut him off abruptly, with no warning. The Army has failed to see the Soldier thru the end of his rehabilitation to make a final and accurate diagnosis.” SFC F recommends the applicant’s discharge be changed to HD so that he can one day rejoin the ranks and serve his country again (2 pages) d. SSG K, former S-3 support section, states “due to the composition of the unit, many in the S-3 went back to their home of record which did not leave anyone to look over the lower enlisted such as the applicant.” SSG K states he was aware of the applicant’s parents moving back to California, leaving no family support system for the applicant. SSG K states, he along with others from the area, tried to keep the applicant in good spirits by inviting him to join their families during the holidays. Prior to SSG K’s second deployment, he states the applicant put on some weight; however, was working on losing it and improving his APFT. SSG K states the applicant was performing as required in training and continuing to work on improving his physical fitness. After returning from deployment, SSG K was informed that the applicant had not been present at training so he contacted him to find out why. The applicant told SSG K that he was feeling depressed and that it grew worse once he deployed. SSG K states he spoke with the applicant about using Military One Source and the VA for additional assistance. SSG K states he worked with the applicant three to four times a week to lose weight and improve his physical fitness. SSG K states the applicant’s morale noticeably improved within the first couple of months, his run time improved by seven minutes. SSG K states the applicant’s discharge should be upgraded to an HD in order for him to seek help when the need arises from the VA and to serve his country once again (2 pages). 5. East Los Angeles Veterans Center (ELAVA) memorandum, dated 21 October 2013, provides a therapeutic progress on the applicant’s on-going counseling to assist him in better managing his depression and other mental health issues. The memo states the applicant’s mental status has improved since he initiated treatment. The ELAVA developed a treatment plan focusing on decreasing his depressive symptoms especially non-nutritious food intake, improved sleeping patterns, and improving his self-esteem. In addition, a focus on stress reduction, developing alternative strategies for improved communication with his family, and coping skills including physical activity and the advantage of a regular workout plan (1 page). 6. Two separate emails, dated between 9 September 2011 and November 2012, regarding the applicant’s discharge. a. MSG B, 412 TEC Sr HR NCO, responds to Mrs. L (G-1), courtesy copy sent to MSG W (302d MEB), “the recovery letter is dated AFTER the discharge date, the Soldier CANNOT be recovered. If the Soldier wishes to rejoin he can see the recruiter.” b. SGT H, 302d MEB Unit Administrator (S-1), responds to the applicant regarding the Army Review Board Agency appeals process, “you have 45 days after you are discharged to appeal. We are obviously way past that now. Like I told you on the phone the answer is no.” A subsequent email from SGT H states, “we already tried to help you a long time ago and got ABSOLUTELY NOWHERE. If you email me again, I am going to contact my commander.” POST-SERVICE ACTIVITY: None was provided with the application. REGULATORY AUTHORITY: 1. Army Regulation 135-178 governs procedures covering enlisted personnel management of the Army Reserve. Chapter 13 provides in pertinent part, that individuals can be separated for being an unsatisfactory participant. Army Regulation 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills acrue during a 1 year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in— the Soldier’s refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135–178. 2. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general discharge under honorable conditions or an honorable discharge may be granted. 3. Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. DISCUSSION AND RECOMMENDATION: 1. After a careful review of the applicant’s military records for the period of enlistment under review, the issues and documents submitted with the application, it appears that the discharge is now inequitable based on the circumstances surrounding his discharge. Letters from the applicant’s chain of command reflect discharge proceedings were initiated prior to the discovery of the applicant’s mental health issues. Once the facts leading to the misconduct were known, the command exhausted all means to withdraw the discharge proceedings; however, was unsuccessful due to misinterpretation of regulatory guidance, by higher echelon’s supporting staff. 2. The record supports a conclusion that the applicant’s discharge is now inequitable based on the following factors: a. Length and quality of service: The applicant served 6 years and 14 days of an 8-year enlistment, thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically an ARCOM, an AAM, and an AFRM with device, two of which were for a tour in combat. 3. In view of the foregoing, it appears the discharge is now inequitable and it is recommended the Board 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. This action entails a change to the reentry eligibility (RE) code to 1 and restoration of grade to E-4/SPC. 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, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, the circumstances surrounding his discharge, and his significant medical issues mitigated the discrediting entry in his service record. 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. This action entails restoration of grade to E-4/SPC. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 10 July 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] Board Vote: Character Change: 5 No Change: 0 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new Discharge Order: 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: SPC/E-4 Other: : TO: ARBA Promulgation Team. Arlington, VA Date: 10 July 2015 The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in page 1, directs the ARBA Promulgation Team, Arlington, VA to issue a new discharge order to the applicant which reflects the following directed changes: ( X ) Change characterization of discharge to General, Under Honorable Conditions. ( X ) Restoration of grade to E-4/SPC 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) AR20140006548 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1