IN THE CASE OF: BOARD DATE: 3 November 2014 CASE NUMBER: AR20140008371 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. 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 on behalf of the applicant an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge. 2. Counsel states, in effect, the applicant makes his request on the grounds of equity. He contends the applicant served honorably for more than four years with no incidents of misconduct. Counsel states the applicant was a victim of sexual assault by his platoon sergeant which brought to the surface other sexual assault issues from the applicant’s childhood. He states the applicant’s chain of command took no equitable action once the assault was reported and as a result the applicant suffered reprisal by his platoon sergeant. He contends because of this mistreatment, the applicant engaged in deliberate use of illegal drugs to hasten his separation from the military. Counsel contends the applicant is a homeless veteran who lives in a men’s shelter, he is unable to use his Montgomery GI Bill which would assist him in building a stable life and overcome homelessness. He states the applicant has had only one incident with law enforcement since his discharge which involved his arrest for attempting to smoke marijuana and was charged with unlawful possession of marijuana. He contends the charges were dismissed by the court. He contends the applicant suffers from Post Traumatic Stress Disorder (PTSD) and a major depressive disorder. He states since the applicant’s discharge, he has completed the Bay Pines Veteran Affairs Healthcare System Center for Sexual Trauma Program, numerous college courses, and volunteers at GallopNYC, a therapeutic horsemanship program. Counsel contends prior to the misconduct, the applicant earned a Army Achievement Medal, successfully completed the Primary Leadership Development Course (PLDC), and served honorably for four years. Counsel requests consideration of the applicant’s petition based on the following: a. The applicant’s quality and length of service before the sexual assault and subsequent separation from the military. b. The detrimental affect the sexual assault had on the applicant’s total capability as a Soldier. c. The profound personal problems of the applicant was exacerbated by the sexual assault at the hands of his platoon sergeant. d. The substantial changes to the DODI 1332.14, dated 27 January 2014, versus the limited rights afforded the applicant in 1999, as a military sexual assault victim. e. The substantial changes to AR 600-85, Army Substance Abuse Program, dated 11 March 2014, versus the limited rights afforded the applicant in 1999, during the separation proceedings. f. The applicant’s record of service prior to the misconduct, in conjunction with the new protections afforded to him as military sexual assault victim. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 9 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 10 May 1999 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Chapter 14-12c JKQ, RE-3 e. Unit of assignment: Delta Company, 4-123rd Aviation Regiment Fort Wainwright, AK f. Current Enlistment Date/Term: 5 October 1994/6 years g. Current Enlistment Service: 4 years, 7 months, 6 days h. Total Service: 4 years, 7 months, 6 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 68G20, Aircraft Structural Repairer m. GT Score: 121 n. Education: HS Graduate o. Overseas Service: Alaska p. Combat Service: None q. Decorations/Awards: AAM, AGCM, NDSM, NPDR, ASR, OSR r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 5 October 1994, for a period of 6 years. He was 31 years old at the time of entry and a high school graduate. He served in Alaska and earned a AAM. He completed 4 years, 7 months, and 6 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Wainwright, Alaska. He was separated from the military in the pay grade of SPC/E-4. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 20 April 1999, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically, for receiving a FG Article 15 for the wrongful use of marijuana. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 20 April 1999, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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 26 April 1999, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was separated on 10 May 1999, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 26 February 1999, for wrongful use of marijuana on or between 22 December 1998 and 20 January 1999. The punishment consisted of reduction to the grade of E-4, forfeiture of $633 pay per month for two months (suspended), to be automatically remitted if not vacated before 25 August 1999, extra duty and restriction for 45 days (FG). 2. An NCOER covering the period of April 1998 through January 1999. The applicant was rated as “Marginal” by his rater. He received a “4/4” for his “Overall Performance/Overall Potential” from his senior rater (SR). His SR recommended the applicant not be retained in the military. EVIDENCE SUBMITTED BY THE APPLICANT: Counsel provided a DD Form 293, dated 8 May 2014, with all supporting listed documentation, and a DD Form 214 covering the period of service under review. POST-SERVICE ACTIVITY: Counsel states the applicant has completed the Bay Pines Veteran Affairs Healthcare System Center for Sexual Trauma Program, numerous college courses, and volunteers at GallopNYC, a therapeutic horsemanship program. 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, 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. Counsel’s request for an upgrade of the characterization of the applicant’s discharge and change to the narrative reason for discharge was carefully considered. However, after examining the applicant’s record of service and his military records, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms 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. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in NCOs. The applicant, as an NCO, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The applicant’s record of service was marred by a FG Article 15. 3. Counsel requests a change in the reason for the discharge from misconduct to secretarial plenary authority. However, 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, by reason of misconduct, commission of a serious offense. The regulation further stipulates that no deviation is authorized. 4. Counsel contends the applicant should be granted an upgrade on equitable grounds based on the quality and length of the applicant’s service, prior to his sexual assault and subsequent separation for the use of marijuana. However, as previously stated, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a non-commissioned officer. The applicant, as an NCO, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service. 5. Counsel contends the applicant should be granted an upgrade on equitable grounds because of a sexual assault that occurred which had a detrimental effect on the applicant’s total capability as a Soldier. Further counsel states this aggravated the applicant’s PTSD. However, the applicant had many legitimate avenues, such as Army Community Services, the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers, 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. 6. Further, although the applicant’s service record contains documentation that supports a post-service diagnosis of PTSD, a careful review of the entire record reveals his medical conditions did not overcome the reason for discharge and characterization of service granted. In addition, there are many Soldiers with the same condition that completed their service successfully. 7. Counsel contends the applicant should be granted an upgrade on equitable grounds because of the applicant’s profound personal problems that were exacerbated by his sexual assault. 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. 8. Counsel contends that based on the substantial changes to DODI 1332.14 and AR 600-85, the applicant had limited rights afforded to him during the separation proceedings and as a result of him being a military sexual assault victim. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has counsel produced any evidence to support the contention. Further, although counsel alleges the applicant was a victim of sexual assault during his military service, there is no evidence in the applicant’s military records to support his contention. The applicant’s statements alone do not overcome the government’s presumption of regularity. 9. Counsel contends the incident that caused the applicant’s discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 10. Counsel contends that an upgrade of the applicant’s discharge would allow educational benefits through the use of the GI Bill. However, 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. Further, the Board does not grant decisions of upgrade for access to veteran’s benefits. 11. Counsel contends that the applicant is currently homeless and lives in a men’s shelter. However, eligibility for housing supportive program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. 12. The records show the proper discharge and separation authority procedures were followed in this case. 13. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 3 November 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes 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: No Change Change RE Code to: No Change Grade Restoration to: NA Other: NA DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: The applicant submitted the following additional documents: North Carolina State Bureau of Investigation Police Record In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. 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) AR20140008371 Page 2 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1