IN THE CASE OF: Mr. BOARD DATE: 11 August 2014 CASE NUMBER: AR20140008995 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant's record of service during the period of enlistment under review, hearing the testimony of appointed counsel, and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. 2. However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4. 3. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. 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 from under other than honorable conditions to honorable and a change to the narrative reason for discharge. 2. The applicant states, in effect, through legal counsel that his discharge was improper and should be upgraded to honorable and changed to discharge by reason of secretarial authority, because his enlistment was erroneous under Chapter 7-15 of Army Regulation 635-200. He contends his discharge should be upgraded because the officers and medical personnel at Fort Carson failed to appropriately diagnose and address his worsening psychological conditions, and wrongly attributed his conduct to drug abuse and behavioral problems. The applicant also contends that his misbehavior is consistent with prodromal schizophrenia rather than intentional or malicious conduct. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 28 May 2014 b. Discharge Received: Under Other Than Honorable Condition c. Date of Discharge: 23 May 2011 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200 Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 2nd Bn, 12th IN Rgt, 4th IN BCT, Fort Carson, CO f. Current Enlistment Date/Term: 29 July 2008, 3 years and 19 weeks g. Current Enlistment Service: 2 years, 9 months, 25 days h. Total Service: 2 years, 9 months, 25 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 94 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan (090603-100516) q. Decorations/Awards: AAM, ACM-w/CS, NDSM, GWOTSM, ASR, OSR, NATOMDL, CIB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: Yes, 15 February 2012 SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 29 July 2008, for a period of 3 years and 19 weeks. He was 19 years old at the time of entry and a high school graduate. He was serving at Fort Carson, CO when his discharge was initiated. His record indicates he served in Afghanistan; achieved the rank of SPC/E-4, and achieved several awards to include the AAM and the CIB. He completed 2 years, 9 months, and 25 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 8 March 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). Specifically for the following offenses: a. Disobeying a lawful command, disrespecting a superior commissioned officer and violating Fort Carson Regulations; b. willfully disobeyed a lawful command (110208); c. was disrespectful towards a superior commissioned officer (110228); d. failed to obey a lawful general regulation, to wit; paragraph 4-1(a), Fort Carson Regulation 210-18, dated (100115), by wrongfully using a controlled substance analogue (100909); e. failed to obey a lawful general regulation, to wit; paragraph 4-3(a-c), Fort Carson Regulation 210-18, dated (100115), by wrongfully possessing drug paraphernalia (100910). 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 8 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon his receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement in his own behalf. The intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. 4. On 15 March 2011, the Brigade Commander, recommended disapproval of the conditional waiver and directed the matter to the Brigade's standing separation board. 5. On 2 May 2011, the applicant consulted with legal counsel again, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf. 6. On 13 May 2011, the Brigade Commander, reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. 7. On 13 May 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 8. The applicant was discharged from the Army on 23 May 2011, with a characterization of service of under other than 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 4. 9. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The unit commander's recommendation memorandum indicates the applicant received a field grade Article 15 on 29 January 2009; the punishment consisted of reduction to the grade of E-1 and extra duty and restriction for 45 days. The record is void of any supporting documents. 2. An MP Report dated 10 September 2010, that indicates the applicant was the subject of an investigation for failure to obey general order-other (Article # 92)controlled substance violation, other possession of other controlled substance-synthetic cannabinoids. 3. An MP Report dated 31 January 2011, that indicates the applicant was the subject of an investigation for failure to obey general order-paraphernalia; controlled substance violations, other-possession of other controlled substance-synthetic cannibanoids. 4. An MP Report dated 5 February 2011, that indicates the applicant was the subject of an investigation for controlled substance violation, other possession of other controlled substance-synthetic cannabinoids. 5. Army Substance Abuse Program (ASAP) Enrollment, dated 15 November 2010, for salvia possession 10 September 2010. 6. Report of Mental Status Evaluation, dated 15 November 2010, indicating the applicant had been diagnosed for polysubstance abuse. The psychologist determined the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible and met the retentions requirements of Chapter 3, AR 40-501. 7. Fifteen negative counseling statements dated between 16 September 2010 and 1 March 2011, for being disrespectful towards a noncommissioned officer, disobeying a direct order from a noncommissioned officer, possession of Salvia a controlled substance, being in the wrong uniform/improper wear of the uniform, not shaving, failure to maintain control of his ID Card, possession of another Soldier's SGLV paperwork, failing room inspection, and possession of spice. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, a personal statement, a support statement, Royale Medical Records (080620-080626; 120517-120801; 130905-130918; and 130923-131007), schizophreniform disorder, WebMD(2014), The Winter War, Al Jazeera English (16 February 2012), VA Hospital Records (110528-110914), letter from Dr. S.M., Discharge Review Board-Case Report and Directive, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition-Schizophrenia Spectrum and Other Psychotic Disorders, The Prodromal Phase of First Episode Psychosis, Schizophrenia Overview, New York Times Health, Memory Impairments Identified in People at Ultra-High Risk for Psychosis, chain of command recommendation for administrative recommendation, Army Substance Abuse Program (ASAP) Enrollment, report of behavioral evaluation, Rachel Aviv, Which Way Madness Lies; Can Psychosis be Prevented, Harper's Magazine (December 2010), and ADRB decisional documents, AR 2004099933, AR 2001053050, AR 20040005941. POST-SERVICE ACTIVITY: None provided with the 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by several acts of misconduct to include wrongful use of spice and salvia, disobeying a lawful command, disrespecting a superior commissioned officer and violating Fort Carson Regulations and several negative counseling statements. 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 also requested his narrative reason for discharge be changed. However, 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense). The regulation further stipulates that no deviation is authorized. 5. The applicant contends his discharge was improper because his enlistment was erroneous under Chapter 7-15 of Army Regulation 635-200. The applicant's contentions were noted; however, paragraph 7-15a states a Soldier may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment per guidance in chapter 1, section II. For purpose of this chapter, the term enlistment means both an original enlistment and any subsequent enlistments (re-enlistments). An enlistment, induction, or extension of enlistment is erroneous if all of the following apply: it would not have occurred had the relevant facts been known by the government or had appropriate directives been followed; it was not the result of fraudulent conduct on the part of the Soldier; and the defect is unchanged in material respects. 6. Information provided by the applicant in his statement of facts shows the applicant was involuntarily confined and diagnosed with schizophreniform disorder 20 June 2008, shortly before enlisting in the Army. It appears this was information the applicant chose to withhold at the time of enlistment; therefore this would be considered as fraudulent conduct on the part of the Soldier, causing his enlistment not to be erroneous. 7. He contends his discharge should be upgraded because the officers and medical personnel at Fort Carson failed to appropriately diagnosed and address his worsening psychological conditions, and wrongly attributed his conduct to drug abuse and behavioral problems. The applicant also contends that his misbehavior is consistent with prodromal schizophrenia rather than intentional or malicious conduct. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was not appropriately diagnosed. 8. Further, while the applicant may believe not being appropriately diagnosed for his worsening psychological conditions was the underlying cause of his misconduct. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. 9. Furthermore, the record of evidence does not demonstrate that he sought relief from his medical issues through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 10. The service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 11. 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. 12. The records show the proper discharge and separation authority procedures were followed in this case. 13. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. 14. Additionally, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. 15. In view of the foregoing and notwithstanding the propriety of the discharge, the analyst recommends the Board change block 27, reentry code to 3, as approved by the separation authority SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 11 August 2014 Location: Washington, DC Did the Applicant Testify? No. The appointed counsel (below) testified on behalf of the applicant, who did not appear due to hospitalization. Counsel: Yes [redacted] Witnesses/Observers: No DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted no additional documents or additional issues. 2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant’s appointed counsel 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: Yes Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: 3 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) AR20140008995 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1