IN THE CASE OF: Mr. BOARD DATE: 6 May 2015 CASE NUMBER: AR20140005475 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review and notwithstanding the 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. Counsel requests an upgrade of the applicant’s general, under honorable conditions discharge to honorable and a change to the narrative reason for separation. 2. Counsel states, in effect, the traumatic and life-threatening events the applicant faced during combat and the dissolution of his engagement to his fiancé caused him to suffer from severe PTSD. Counsel states, the applicant’s pattern of mental behavior-related misconduct was due to his uncontrolled PTSD symptoms, as confirmed by the applicant’s Army medical records and evaluation. Counsel contends, the applicant served honorably during most of his tenure in the Army, and his PTSD should be considered as a mitigating factor of his pattern of misconduct. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 1 July 2011 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3 e. Unit of assignment: 4th Squadron (Rear)(Provisional), 2nd Stryker Regiment (Rear)(Provisional), Germany f. Current Enlistment Date/Term: 21 September 2005/6 years g. Current Enlistment Service: 5 years, 9 months. 11 days h. Total Service: 9 years, 4 months, 23 days i. Time Lost: 24 days j. Previous Discharges: DEP, 020209-020318, NA RA, 020319-050920, HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 92Y10, Unit Supply Specialist m. GT Score: 114 n. Education: College Graduate o. Overseas Service: SWA, Germany p. Combat Service: Iraq, (041101-051101) (030312-040312) q. Decorations/Awards: PH, ARCOM-3, AAM, ICM-3CS, AGCM-2 NDSM, GWOTSM, NPDR, ASR, OSR-3 r. Administrative Separation Board: NIF s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 March 2002, for a period of 6 years. He was 26 years old at the time of entry and a college graduate. He reenlisted in the Regular Army on 21 September 2005, for a period of 6 years. He served in Germany and Iraq. He earned a PH, three ARCOMs and an AAM. He completed 9 years, 4 months, and 23 days of creditable military service. When his discharge proceedings were initiated, he was serving in Germany. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 1 February 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct. Specifically for: a. being disrespectful to a commissioned officer (100211 and 101116), b. assaulting SPC S by pushing him with both hands and causing him to collide into a doorway, assaulting a behavior health staff member by spitting on them and assaulting Mr. R by punching his face with a closed fist (081224, 101102 and 101116), c. failing to be at his appointed place of duty or report to duty (091119, 100313, 100321, 100720, 101103, and 101116), d. being insubordinate towards SGT H and SFC Y (101027 and 101110), e. driving while intoxicated with a blood alcohol content of .058 and .188 (090126 and 100606), f. being derelict in the performance of his duties by failing to maintain the unit property book and leading physical training (091119 and 091217, g. communicating a threat to PFC H (091224), h. committing larceny against a bar located in Vilseck, Germany (081224), and i. committing robbery against Mrs. G by ripping a necklace off her neck (081224). 2. Based on the above pattern of misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 24 February 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested his case be heard by an administrative separation board, and elected to 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. The record is void of the applicant’s notification to appear before an administrative separation board. 5. The separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 6. The applicant was separated on 1 July 2011, under the provisions of Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, a SPD code of JKA, and a RE code of 3. 7. The applicant's record shows he was AWOL during the period 28 January 2011 through 21 February 2011. His mode of return is unknown. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. DA Form 4430 (DA Report of Result of Trial), dated 27 January 2011, reflects the applicant appeared before a special court-martial. He was found guilty of failing to be at his appointed place of duty (101116), being disrespectful to a commissioned officer and NCO (101110 and 101116), and unlawfully striking SPC S (101116). The punishment consisted of a reduction to the grade of E-1, forfeiture of $978 pay per month for two months and confinement for 60 days. 2. Article 15, dated 27 September 2010, for driving while intoxicated with at blood alcohol content of .188. The punishment consisted of a reduction to grade of E-4, forfeiture of $1,146 pay per month for two months and 45 days of extra duty and restriction. The applicant appealed the punishment and was granted a reduction of restriction from 45 days to 30 days (FG). 3. Article 15, dated 12 May 2010, for failing to go to his appointed place of duty (091119), being disrespectful toward a commissioned officer (100211) and being derelict in the performance of his duties (091118). The punishment consisted of a reduction to the grade of E-5, forfeiture of $1,380 pay per month for one month (suspended) and 30 days of extra duty. The applicant appealed the imposed punishment. His appeal was denied (FG). 4. Two DA Forms 4187 (Personnel Action), dated 28 January 2011 and 22 February 2011, reflect the applicant’s duty status changes. 5. A Report of Mental Status Evaluation, dated 2 November 2010, reflects the applicant was referred for inpatient treatment for an overdose of Ambien. The applicant was found to have no psychiatric disease or defect that warranted a medical board, was mentally responsible and able to distinguish between right and wrong. His evaluation determined his disruptive behavior was not excused or accountable by a psychiatric diagnosis but that his behavior was due to misconduct. The applicant was recommended to return to full duty and psychiatrically cleared for any administrative action deemed appropriate by the command. 6. MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 6 May 2011, reflects the applicant had clear and normal thought process and content, was mentally responsible, was able to distinguish the difference between right and wrong, and had a diagnosis of an adjustment disorder with depressed mood, by history, alcohol abuse and adult antisocial behavior. The applicant had no symptoms compatible with PTSD. 7. Special Court-Martial Order Number 9, dated 29 June 2011, reflects the applicant was found guilty of being AWOL (101103-101108), failing to be at his appointed place of duty (101116), being disrespectful towards a commissioned officer (101116), being disrespectful in language and deportment towards a NCO (101110), unlawfully striking SPC S (101110). The punishment was adjudged on 27 January 2011, as stated above in paragraph 1. 8. A GOMOR, dated 10 November 2010, for operating a motor vehicle on a public road while under the influence of alcohol and causing a traffic accident. 9. A MP Report, dated 6 June 2010, reflects the applicant was the subject of an investigation for drunk driving, drunk and disorderly conduct, failure to maintain control-causing a traffic accident, and causing a traffic accident resulting in damage to host nation property. 10. Five NCOERs covering the period September 2004 through 15 May 2010. The applicant was rated as “Among the Best” on one report, “Fully Capable” on three reports and “Marginal” on the remaining report by his raters. He received a “2/1,” “2/2,” “3/2,” “4/3,” and “5/5” rating from his senior raters. 11. Two negative counseling statements, dated 19 November 2009 and 11 February 2010, for dereliction of duty and disrespect towards an officer. EVIDENCE SUBMITTED BY THE APPLICANT: Counsel provided a DD Form 293, dated 21 March 2014, signed by the applicant, a statement in support of the applicant’s request, 20 February 2014, a DD Form 214, a counseling statement, dated 11 February 2010, two NCOERs (080201-090131 and 090615-100124), two copies of Permanent Orders Number 129-2325, dated 8 May 2003, a partial copy of his discharge packet, to include notification letter, dated 1 February 2011, Report of Mental Status Evaluation, dated 2 November 2010, Report of Behavioral Health Evaluation, dated 6 May 2011, and DA Report of Result of Trial, dated 27 January 2011, a letter from Mr. H, MD, Department of Veterans Affairs, dated 18 February 2013, two character statements, dated 28 December 2010 and 6 January 2011, and allied medical documents. POST-SERVICE ACTIVITY: Counsel did not present any in support of the applicant’s request. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct. DISCUSSION AND RECOMMENDATION: 1. Counsel’s request for an upgrade of the characterization of the applicant’s 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 and quality of service: The applicant served 5 years, 9 months. 11 days of a 6-year enlistment, thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically a Purple Heart, three ARCOMs, one of which was for a tour in combat, and an AAM. c. The applicant’s diagnosis of PTSD beginning 10 September 2008 and his subsequent diagnosis by the Department of Veterans Affairs. 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. 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. BOARD DETERMINATION AND DIRECTED ACTION After carefully examining the applicant's record of service during the period of enlistment under review and notwithstanding the 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: 6 May 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: yes [redacted] Witnesses/Observers: NA 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: 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) AR20140005475 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1