IN THE CASE OF: BOARD DATE: 8 December 2014 CASE NUMBER: AR20140012504 ___________________________________________________________________________ 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 notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service; to include his combat service, and as a result, it is inequitable. 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-3/PFC. 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 under other than honorable to general, under honorable conditions or honorable, and to separate his periods of service. 2. The applicant states, in pertinent part and in effect, he made an error using poor judgment which has caused him years of anguish and regret; however, his entire service should not be judged by the isolated incident. Being informed of his upcoming third deployment affected his already stressful circumstances. The incident never occurred again. His wife and son have forgiven him. He is closer with his son. He has an additional son and expecting a daughter. His current discharge affects his ability to provide for his family. He would like for his family to have a better life, but the background check destroys that possibility. He served seven years with two deployments and two ARCOMs. The applicant provided an additional self-authored statement and in pertinent part, he states he was pending a medical board discharge prior to the incident; he was discharged in November and the incident that led to his discharge occurred on 13 February 2008; he was not able to get all his witnesses to his trial because the process was sped through; he was diagnosed with PTSD; and he is currently in college and still in parenting skills and marriage counseling. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 July 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 26 November 2008 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: 1st BCT (Rear) (Provisional), 10th Mountain Division Fort Drum, NY f. Current Enlistment Date/Term: 15 February 2006, 6 years g. Current Enlistment Service: 2 years, 9 months, 12 days h. Total Service: 7 years, 5 months, 9 days i. Time Lost: 14 days j. Previous Discharges: RA (010604-040811) / HD, per enlistment record RA (040812-060214) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92A10, Automated Logistical Specialist m. GT Score: 123 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (060117-061203), (030407-040323) q. Decorations/Awards: ARCOM-2; AAM; AGCM-2; NDSM; ICM-3BSS GWOTEM; GWOTSM; NPDR; ASR; OSR r. Administrative Separation Board: No, waived unconditionally s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: Yes SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 4 June 2001, and reenlisted twice thereafter. The latter reenlistment was on 15 February 2006, for a period of 6 years. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist. He served in Iraq. He earned two ARCOMs and an AAM. He completed 7 years, 5 months, and 9 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that 24 October 2008, 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 misconduct - commission of a serious offense, specifically for unlawfully striking a child under the age of 16 on the right and left side of the child’s face with his hand on two occasions (080213). 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 28 October 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and on 17 September 2008, he voluntarily, and conditionally, waived consideration of his case by an administrative separation board contingent upon the acceptance of his offer to plead guilty and the execution of a summary court-martial, and submitted statements on his behalf, although electing not to submit matters 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 of the separation with an under other than honorable conditions discharge. 4. On 14 November 2008, the GCMCA waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 5. The applicant was discharged from the Army on 26 November 2008, with a characterization of service of under other than 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 a RE code of 3. 6. The applicant’s record of service indicates 14 days of time lost for being confined by military authorities from 26 September 2008 through 9 October 2008. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Record of Trial by Summary Court-Martial and a Report of Result of Trial, dated 25 September 2008, indicates the applicant was arraigned and found guilty of the charge of violating Article 128, UCMJ, with its two specifications of committing an assault consummated by a battery upon a child under 16 years of age. The sentence consisted of a reduction to E-3, forfeiture of $596, and 14 days of confinement. On 31 October 2008, the sentence was approved and ordered to be executed. 2. Charge sheet showing the aforementioned charge was preferred on 18 August 2008, and referred to be tried by a summary court-martial on 19 September 2008. 3. Offer to plead guilty was rendered by the applicant on 17 September 2008. 4. Memorandum for Record, dated 17 September 2008, subject: Conditional Waiver of Right of Administrative Separation Board, was rendered by the applicant who indicated that the waiver was conditioned upon the acceptance of the offer to plead guilty and the execution of a summary court-martial. On the same memorandum, the summary court-martial convening authority accepted the offer. 5. Memorandum for Record, dated 30 July 2008, subject: 30 July Telephone Conversation with [the applicant’s spouse], rendered by a trial counsel, detailed the substance of the conversation. 6. CID Report, dated 28 February 2008, indicated the applicant was the subject of an investigation for assault on a child under 16. 7. Report of Mental Status Evaluation, dated 23 October 2008, indicates the applicant was diagnosed with AXIS I: PTSD per medical record, Axis II: diagnosis deferred, and Axis III: GERD. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement; a character reference statement; and a certificate of completion, dated 23 April 2008. POST-SERVICE ACTIVITY: The applicant states, in effect, he is currently in college, and still taking parenting skills and marriage counseling. 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 a SPD Code of "JKQ" will be assigned a RE Code of 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and to separate his periods of service was carefully considered. However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms that 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. By the serious incident of misconduct, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge. The applicant’s record of service was marred by a summary court-martial. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 4. The applicant contends he made an error using poor judgment which has caused him years of anguish and regret; however, his entire service should not be judged by the isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 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. 5. The applicant has expressed his desire to possibly rejoin the Service, to have better job opportunities and the benefits of the GI Bill because his current discharge affects his ability to provide for his family and for them to have a better life. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3. There is no basis upon which to grant a change to the reason or to the RE code. A RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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. In addition, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities, or to provide educational benefits. 6. The applicant contends being informed of his upcoming third deployment affected his already stressful circumstances, and the subsequent family issues 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. 7. The applicant contends that he had good service which included serving seven years with two deployment and two ARCOMs. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incidents of misconduct or by the documented action under a summary court-martial. 8. The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 23 October 2008, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant’s chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong as indicated by the mental status evaluation. 9. The applicant contends the discharge was unjust because he was pending a medical board discharge prior to the incident; he was discharged in November and the incident that led to his discharge occurred on 13 February 2008; and he was not able to get all his witnesses to his trial because the process was sped through to effect his discharge. 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 the applicant produced any evidence to support the contention that he may have been unjustly discriminated. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 10. The applicant contends that he is currently in college, and still participating in a parenting skills and marriage counseling. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. 11. The applicant contends that his periods of service noted on his DD Form 214 should be separated. However, the applicant’s requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 12. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. Accordingly, 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: 8 December 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Letter, treatment plan, discharge and progress summaries from therapist, Ms. B.A.G., L.I.S.W (9 pages) b. Letter from therapist Ms. K.L.C., MA, CC, LMHC, LIMHP (1 page) 2. The applicant presented no additional contentions. 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. Board Vote: Character Change: 4 No Change: 1 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: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: E-3/PFC 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) AR20140012504 Page 8 of 9 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1