IN THE CASE OF: Mr. BOARD DATE: 14 January 2015 CASE NUMBER: AR20140016881 ___________________________________________________________________________ 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 characterization of service was too harsh based on the overall length and quality of the applicant's 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 honorable. The Board 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 general, under honorable conditions discharge to honorable. 2. The applicant states, in effect, his wife had informed the unit commander that the accusations she made were false and that they were made in hopes of getting the applicant help for his Post Traumatic Stress Disorder (PTSD) and Mild Traumatic Brain Injury (MTBI). The applicant contends he has served over 13 years of honorable service with three deployments. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 September 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 23 July 2014 d. Reason/Authority/SPD/RE Code: Misconduct (serious offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: B Battery, 2d Battalion, 320th Field Artillery Regiment, 1st Brigade Combat Team, 101st Airborne Division (Air Assault), Fort Campbell, KY f. Current Enlistment Date/Term: 13 September 2013/NIF g. Current Enlistment Service: 10 months, 11 days h. Total Service: 13 years, 3 months, 12 days i. Time Lost: None j. Previous Discharges: DEP, 010216-010411, N/A RA, 040912-070912, HD RA, 071013-130912, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 13B10, Cannon Crewmember m. GT Score: 97 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (031112-041102, 060622-070917, 091010-100930) q. Decorations/Awards: ICM-2CS, ARCOM-3, AAM, MUC, AGCM-4, NDSM, GWOTSM, NPDR, OSR-3, CAB r. Administrative Separation Board: Yes s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 12 April 2001 for a period of 3 years. He reenlisted in the Regular Army on 13 September 2013, for an unknown period of time. He was 33 years old at the time and had a GED certificate. He served in Iraq, earned three ARCOM’s and a CAB, and completed 13 years, 3 months, and 12 days of active duty service. When his discharge proceedings were initiated he was serving at Fort Campbell, Kentucky. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 4 April 2014, 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) for physically assaulting Ms. W on two separate occasions (121111 and 130321). 2. Based on the above misconduct, the unit commander recommended an honorable discharge and advised the applicant of his rights. 3. On 10 April 2014, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than honorable conditions. The applicant elected not to submit 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 honorable discharge. 4. On 2 May 2014, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 20 May 2014, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions. 6. On 10 June 2014, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 7. The applicant was discharged from the Army on 23 July 2014, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 8. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated 10 February 2014, for unlawfully striking Ms. W on the head with his head (130321) and unlawfully striking Ms. W on the hand with his head and grabbing her throat with his hand (121111). The punishment consisted of a reduction to the grade of E-4, forfeiture of $1213.00 pay per month for two months (suspended) to be remitted if not vacated before 27 March 2014, 45 days of extra duty and restriction (FG). 2. Three counseling statements, dated between 4 February 2014 and 12 June 2014, regarding debt avoidance and initiation of separation proceedings. 3. Discharge Order Number 163-0617, dated 12 June 2014, Department of the Army, Headquarters 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky, discharged the applicant from the United States Army effective 23 July 2014. 4. DA Form 3822 (Report of Mental Status Evaluation), dated 7 February 2014, reflects that the applicant had a clear and normal thought process and was mentally responsible. However, it was noted in Section VIII (Additional Comments) the applicant tested positive for Post Traumatic Stress Disorder and Mild Traumatic Brain Injury. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, dated 18 September 2014, a DD Form 214 covering the period of service on active duty training. 2. The applicant provided copies of documents that were found in his AMHRR. 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 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 honorable for the following reasons: a. Length of service: The applicant served over 13 years, thus the preponderance of his service was honorable. b. Quality of service: The record confirms the applicant received several awards, specifically 3 ARCOMs and a CAB, all of which was for tours in combat. 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 unit commander’s notification memorandum, dated 4 April 2014, contained offenses the applicant committed in a prior period of service. The government’s presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct was not considered for the purpose of characterization. Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant’s characterization of service. 5. The applicant contends he has mTBI; however, he was not awarded the Purple Heart for wounds sustained while participating in direct combat operations. Although changes to the DD Form 214 do 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. 6. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 14 December 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA 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 DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Non 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) AR20140016881 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1