IN THE CASE OF: Mr. BOARD DATE: 24 April 2015 CASE NUMBER: AR20140008205 ___________________________________________________________________________ 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 that the discharge was 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 under other than honorable conditions discharge to honorable. 2. The applicant states, in effect, he never received any UCMJ charges and desires to use his benefits. In a undated, self-authored statement to Senator C, the applicant contends he had finished a medical board evaluation prior to initiation of separation action and was told he would still receive a $90,000 severance pay and benefits when he was discharged. He states, he does not understand why he was separated from the military when other members of his unit did similar activities were punished and allowed to stay in the military. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 11 March 2014 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: HHC, Joint Base Garrison, Joint Base Lewis- McChord, WA f. Current Enlistment Date/Term: 28 December 2011/NIF g. Current Enlistment Service: 2 years, 3 months, 14 days h. Total Service: 13 years, 9 months, 29 days i. Time Lost: None j. Previous Discharges: DEP, 000513-000726, NA RA, 000727-020813, HD RA, 020814-060810, HD RA, 060811-111227, HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 74D1P, Chemical Operations Specialist 11B1P, Infantryman m. GT Score: 100 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (020115-020715) Iraq (030301-040218) q. Decorations/Awards: ICM-2CS, PH, ARCOM-V, ARCOM-7, AAM, MUC, AGCM-4, NDSM, GWOTEM, GWOTSM, NOPDR-2, ASR, OSR, CIB r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 27 July 2000, for a period of 4 years. He was 27 years old at the time of his enlistment and a high school graduate. He reenlisted several times with his last enlistment on 28 December 2011, for an undetermined amount of time. He served in Iraq and Afghanistan and earned a PH, ARCOM-V, seven ARCOMs, a AAM, and CIB. He completed 13 years, 9 months, 29 days of creditable military service. When his discharge proceedings were initiated, he was serving at Joint Base Lewis-McChord, WA. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458 (Charge Sheet) which indicates that on 21 January 2014, the applicant was charged with the following offenses: a. disobeying a lawful order from a commissioned officer (130830-131206), b. wrongful use of methamphetamines (130903-130918), c. having sexual intercourse with Mrs J, a married woman not his wife (130801-131206), d. endangering the physical health, safety and welfare of his children, and e. making a false official statement (130827). 2. On 21 February 2014, 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 under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant’s record is void of a statement on his own behalf. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge. 3. On 27 February 2014, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 11 March 2014, with a characterization of service of under other than honorable conditions. 5. The applicant’s record of service does not show any record of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. DA Form 458 (Charge Sheet), dated 21 January 2014, reflects the offenses the applicant was charged with committing. 2. Orders Number 066-001, dated 7 March 2014, reduced the applicant to the grade of E-1 effective 27 February 2014. 3. One NCOER covering the period of 1 October 2011 through 30 September 2012. The applicant was rated as “Among the Best” by his rater and received a “1/2” rating for “Overall Performance/Overall Potential” by his senior rater. As a note, the applicant received nine additional NCOERs from a prior period of service that reflects successful duty performance. 4. A memorandum, dated 27 February 2014, indicates the applicant stated he had been diagnosed with experiencing Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149, dated 30 March 2014, an undated self-authored statement discussing his issues with Senator C, documents from the Congressional Liaison Office and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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. 2. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 general, under honorable conditions for the following reasons: a. Length and quality of service: The applicant served 2 years, 3 months, and 14 days after his 28 December 2011 reenlistment, and a total of 13 years, 9 months, and 29 days of creditable military service, thus the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically a PH, ARCOM-V, seven ARCOMS, a AAM, and a CIB, for two 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 applicant contends he never received any UCMJ charges or counseling statements. However, the applicant was charged with several violations of the UCMJ on 21 January 2014, and requested to be discharged in lieu of a trial by court-martial. 5. The applicant contends other members in his unit that committed similar offenses were punished and allowed to remain in the military. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 6. The applicant contends that he went through a medical evaluation board. However, the Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record. 7. The record contains a memorandum, dated 27 February 2014, that reflects the applicant’s statement that he had been diagnosed with experiencing PTSD or TBI by a medical authority. However, a diagnosis of PTSD or TBI is not found in the record. Further, the applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 8. The applicant desires to use his veteran benefits. However, 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. 9. 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 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 Discussion and Recommendation which follows, the Board determined that the discharge was proper and equitable and voted not to change it. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 24 April 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 2 No Change: 3 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) AR20140008205 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1