IN THE CASE OF: Mr. BOARD DATE: 27 August 2014 CASE NUMBER: AR20140000444 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined the discharge to be 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 his under other than honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, that during his eight years of service, he served honorably until his tour in Korea. He deployed twice to Iraq and once to Kuwait. He performed well in Iraq and was subject to various hazardous conditions to include convoy escort, gunner in the turret, tower guard, incoming gun shots, mortar fire, several trucks being damaged by lEDs, and shock wave from explosions. For his service in Iraq, he was awarded an AAM and a COA. Once in Korea, he began to feel the effects of serving in the war zones. He knows he made some decisions which were not seen as proper by his chain of command and his military life began to fall apart. He has sought treatment at the VA Medical Center in Iowa City, Iowa, for depression and PTSD. He has not been diagnosed with PTSD, but his symptoms are such that the VA feels he should continue with visits. He feels that his negative behavior while in Korea was a result of the trauma he experienced during his deployments. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 December 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 28 December 2012 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4 e. Unit of assignment: HHD, 94th Military Police Battalion, Yongsan, Korea, APO AP 96205 f. Current Enlistment Date/Term: 19 June 2010, 4 years g. Current Enlistment Service: 2 years, 6 months, 9 days h. Total Service: 9 years, 5 months, 4 days i. Time Lost: None j. Previous Discharges: USAR (030724-040616), NA RA (040617-061009), HD RA (061010-100618), HD (Concurrent Service) k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 91B10, Wheeled Vehicle Mechanic m. GT Score: 117 n. Education: HS Graduate o. Overseas Service: SWA x 3, Italy, and Korea p. Combat Service: Iraq x 2 (041219-051128 and 100315-110301) and Kuwait (070618-080911) q. Decorations/Awards: ARCOM-2, AAM-3, AGCM-2, NDSM, ICM- w/CS-2, GWOTEM, GWOTSM, KDSM, NPDR, ASR, OSR-5 r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: None u. Prior Board Review: None SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 17 June 2004, for a period of 3 years. He was 18 years old and a high school graduate. He was trained in military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic. He reenlisted on 10 October 2006 and again on 19 June 2010. His record shows he was awarded two ARCOMs, three AAMs, two AGCMs, and served in two combat tours in Iraq and in an imminent danger pay area (Kuwait). SEPARATION FACTS AND CIRCUMSTANCES: 1. On 15 November 2012, court-martial charges were preferred against the applicant for the following offenses: a. failed to go at the time prescribed to his appointed place of duty x 2 (111213 and 120905), b. disobeyed lawful orders from commissioned officer x 2 (120107), not to consume alcohol and not to leave the installation, c. failed to obey a lawful general regulation, paragraph 3-4b(l 1), USFK Regulation 27-5, individual conduct and appearance, by wrongfully possessing a machete (110707), d. and was found drunk on duty as a Wheeled Vehicle Mechanic (120923). 2. The applicant’s request for discharge is void from the record; however, 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. 3. On 30 November 2012, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate. 4. The applicant was separated on 28 December 2012, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions discharge, an SPD code of KFS and an RE code of 4. 5. The applicant’s record does not show any time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Two NCOERs (one marginal and one successful) covering the period 1 March 2010 and 15 March 2011. 2. A DA Form 458, Charge Sheet. 3. There are no negative counseling’s or actions under the Uniform Code of Military Justice in the available record. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149, two memoranda from the Department of Veterans Affairs, recommendation for an AAM, email correspondence (referencing actions and events during a convoy), and a DD Form 214. POST-SERVICE ACTIVITY: None provided with the application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 2. 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. 3. 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. 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 a partial upgrade of the applicant's characterization to general, under honorable conditions for the following reasons: a. Length and quality of his service: The applicant served 9 years, 5 months, and 4 days and thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically two ARCOMs, three AAMs, two AGCMs, a KDSM, and served in two combat tours in Iraq. c. The applicant achieved the rank of SGT and his record does not contain any evidence of negative counseling’s (except for the Chapter 10 discharge) or any other action under the Uniform Code of Military Justice. d. The applicant’ misconduct appears to have taken place while he was serving in Korea. 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 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. 5. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation, the Board determined the discharge to be proper and equitable and voted to deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 27 August 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None Witnesses/Observers: No 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) AR20140000444 Page 5 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1