IN THE CASE OF: BOARD DATE: 19 June 2015 CASE NUMBER: AR20140007027 ___________________________________________________________________________ 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 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 of service from general, under honorable conditions to honorable. 2. The applicant states, in effect, that his discharge should be upgraded based on his overall character of service. He contends he was dealing with the death of three family members and was not allowed to attend his wife’s funeral. He was diagnosed with an anxiety condition as a result made a bad decision because of that condition. He understands the choice he made was wrong; however, since that time he has been diagnosed with PTSD and has gained more insight into the way this condition manifests itself. He has been granted 100 percent service connected disability for PTSD and diagnosed with a Traumatic Brain Injury (TBI). He contends his conditions were the reasons for the decision he made at the time of discharge and now wishes consideration of this as an aberration to his overall character of service which should be honorable. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 12 March 2008 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: Warrior Transition Unit, Kenner Army Health Clinic, Fort Lee, VA f. Current Enlistment Date/Term: 18 January 2006, 5 years g. Current Enlistment Service: 2 years, 1 month, 25 days h. Total Service: 8 years, 5 months, 23 days i. Time Lost: None j. Previous Discharges: RA-990929-030401/HD RA-030401-060117/HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 92M20, Mortuary Affairs Specialist m. GT Score: 88 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (060831-070722) q. Decorations/Awards: ARCOM, AAM-4, AGCM-2, NDSM, GWOTEM, GWOTSM, ASR r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 29 September 1999, for a period of 3 years. He reenlisted 2 April 2003, for a period of 4 years and on 18 January 2006, for a period of 5 years. He was 25 years old at the time of reenlistment and a high school graduate. His record indicates he served a period of combat in Iraq; achieved the rank of SGT/E-5; and earned several awards to include the ARCOM, four AAMs, and two AGCMs. He completed 8 years, 5 months, and 23 days of active duty service. He was serving at Fort Lee, VA when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 29 January 2008, the applicant was charged with committing sodomy with private M.V.M, by force and without the consent of private M.V.M. (071013). 2. On 28 February 2008, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. The applicant indicated he understood he could receive an UOTHC discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did submit a statement on his own behalf. The unit and intermediate commanders recommended approval of an UOTHC discharge. The senior intermediate commander recommended approval of a general, under honorable conditions discharge. 3. On 6 March 2008, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of general, under honorable conditions. 4. The applicant was discharged from the Army on 12 March 2008, with a characterization of service of general, under honorable conditions under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 5. The applicant’s record contains no evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A CID Report dated 30 October 2007, which show the applicant was the subject of an investigation for forcible oral and anal sodomy. 2. A Report of Behavioral Health Evaluation, dated 10 March 2008, which shows the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149 in lieu of a DD Form 293, a self-authored letter, and two letters from the Department of Veterans Affairs, dated 15 April 2014. POST-SERVICE ACTIVITY: None was 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. However, after examining the applicant’s record of service, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The applicant contends his discharge should be upgrade based on his overall character of service at the time of discharge and as noted in the statements from his psychologist and social worker he was suffering from PTSD and TBI symptoms while on active duty. However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. However, his misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge. 4. The applicant contends as a result of dealing with the death of three family members, he was diagnosed with an anxiety condition which resulted in him making a bad decision. The contention was noted; 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. 5. The applicant contends since his discharge, he has been diagnosed with PTSD and TBI, resulting in 100 percent service connected disability by the Department of Veterans Affairs. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The record shows the applicant suffered a nervous breakdown and was medically evacuated in Germany and later transitioned to the Fort Lee Warrior Transition Unit for treatment, which he was receiving. 6. As noted in the defense counsel's memorandum dated 29 February 2008, requesting the applicant be given a characterization of service of general, under honorable conditions discharge. It was noted the applicant was suffering from injuries suffered in the line of duty, and it was respectfully requested that he be granted a general, under honorable conditions discharge to ensure he did not lose any Veteran's Administration medical benefits needed to continue treatment for his injuries. It appears consideration was taken for the injuries the applicant received in the line of duty and the need for medical benefits, as a basis for receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. However, his misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge. 7. 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 8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 19 June 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None 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) AR20140007027 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1