IN THE CASE OF: Mr. BOARD DATE: 3 June 2013 CASE NUMBER: AR20120020817 ___________________________________________________________________________ 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. The applicant requests an upgrade of his discharge characterization from general, under honorable conditions to fully honorable. 2. The applicant states, in effect, through a memorandum of support from the Trial Defense Service, Fort Wainwright, AK, that his command did not appropriately regard the military justice system. He contends his rights were infringed because of an improper convening authority, unlawful command influence, and because he was not allowed to be present while one of the witnesses talked to the Summary Court-Martial (SCM) Officer. The command continued to disregard his rights when they initiated a chapter action against him based on the findings of his court-martial. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 7 November 2012 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 27 September 2012 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, 14-12c, JKQ, RE-3 e. Unit of assignment: F Co, 725th BSB (Abn), Joint Base Elmendorf- Richardson, AK f. Enlistment Date/Term: 8 April 2008, 4 years g. Current Enlistment Service: 4 years, 5 months, 20 days h. Total Service: 4 years, 5 months, 20 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92A1P, Automated Logistical Specialist m. GT Score: 114 n. Education: GED o. Overseas Service: Alaska, Southwest Asia p. Combat Service: Afghanistan (090304-100125) q. Decorations/Awards: ARCOM, NDSM, ACM-w/2CS, GWOTSM, ASR, OSR-2, NATOMDL, CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 8 April 2008 for a period of 4 years. He was 21 years old at the time of entry with a GED. He served in Alaska and Afghanistan. He earned an ARCOM and completed 4 years, 5 months, and 20 days of total active duty service. The record is void of an enlistment contract, however, the ERB shows his ETS as 27 September 2012. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 31 May 2011, 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 (serious offense) for forging a DA Form 3349 (Physical Profile). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 1 June 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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 commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 4. On 23 August 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. Further, the separation authority indicated that the applicant's disability was not the cause or substantial contributing cause of the misconduct and no other circumstances warrant disability processing instead of alternate administrative separation and directed the case not be processed through medical disability channels. 5. The applicant was discharged from the Army on 27 September 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. The record of trial by summary court-martial indicates the applicant was ordered to be confined for 30 days. However the record is void of any evidence indicating the applicant served the 30 days of confinement. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Summarized Article 15, dated 18 March 2011, for failing to go at the time prescribed to his appointed place of duty (110220) and being disrespectful in language and deportment toward a noncommissioned (110220). The punishment consisted of extra duty for 14 days and restriction for 14 days (suspended). 2. The Record of Trial by Summary Court-Martial, dated 21 June 2011, for presenting a falsified official document (profile) (110318) to a commissioned officer and making a false official statement to a commissioned officer (110518). The punishment consisted of reduction to the grade of E-1, forfeiture of $978.00 pay, and confinement for 30 days. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a memorandum in support of his request to upgrade his characterization of service, dated 5 November 2012, explaining his contentions, documents from his discharge packet, memorandum, dated (120813) from the Medical Director at the Traumatic Brain Injury Clinic at the DoD-VA Joint Venture Hospital, and an email document, dated 21 August 2012. POST-SERVICE ACTIVITY: None were provided with 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. However, after examining the applicant’s record of service, his military records, the documents and the 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by his SCM. 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 submitted a memorandum of support from the Trial Defense Service at Fort Wainwright, AK that raised the following issues in regard to his command not appropriately following the military justice system: a. His rights were infringed because of an improper convening authority. The applicant contends the accuser could not act as the convening authority at his SCM as stated in R.C.M. 504(c) (1). However, a review of the Manual for Courts-Martial United States; Rule 504c (1) states an accuser may not convene a general or special court-martial for the trial of the person accused. The evidence of record shows the applicant received a Summary Court-Martial. Rule 1302b, titled when convening authority is accuser; states if the convening authority or the summary court-martial is the accuser, it is discretionary with the convening authority whether to forward the charges to a superior authority with a recommendation to convene the summary court-martial. If the convening authority or the summary court-martial is the accuser, the jurisdiction of the summary court-martial is not affected. b. Unlawful command influence and because he was not allowed to be present while one of the witnesses talked to the SCM Officer. The applicant based his contention on the SCM officer and the government witness having a conversation during recess of his SCM. The applicant also contends unlawful command influence based on the confinement portion of this sentence being changed from a suspended sentence to actual confinement for 30 days. He believes the confinement would not have occurred if the command members had not been present at his court-martial. 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 the contentions. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his command did not appropriately regard the military justice system. In fact, the applicant’s summary court-martial conviction justifies his discharge for misconduct (serious offense). 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. c. The command continued to disregard his rights when they initiated a chapter action against him based on the findings of his court-martial. However, 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. 5. The document submitted by the applicant that indicates his medical condition could have been a contributing cause to his misconduct was noted and the 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 12 June 2012, the applicant underwent a mental status evaluation which indicates he was actively engaged in a treatment process and that he could understand and participate in administrative proceedings and could appreciate the difference between right and 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. Further, there are many Soldiers with the same condition that completed their service successfully. 6. The records show the proper discharge and separation authority procedures were followed in this case. 7. 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: Personnel Appearance Date: 3 June 2013 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: (Father-in-law/Witness) DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted 300 pages of additional medical documents: 2. 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: 1 No Change: 4 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) AR20120020817 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1