IN THE CASE OF: BOARD DATE: 19 June 2015 CASE NUMBER: AR20140009583 ___________________________________________________________________________ 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 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 an upgrade of his under other than honorable conditions discharge characterization of service to honorable and a change to the narrative reason for separation. 2. The applicant states, in effect, he injured his shoulder in Advance Individual Training (AIT) and required three surgeries to repair it. He states, his doctor recommended he appear before a medical evaluation board (MEB). He states, he desired to remain in the military and was advised to fight the MEB. He states, he was not always the best Soldier and takes responsibility for his actions; however, some of the reasons he acted out were because of a lack of support from his chain of command, his pain and the medication he was taking. He states he was reprimanded for not having on a belt and standing at parade rest, but contends he could not do either. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 30 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 18 December 2009 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3 e. Unit of assignment: HSC, 122nd Aviation Support Battalion, Fort Bragg, NC f. Current Enlistment Date/Term: 12 July 2007/6 years, 25 weeks g. Current Enlistment Service: 2 years, 5 months, 7 days h. Total Service: 2 years, 5 months, 7 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 91B10, Wheeled Vehicle Mechanic m. GT Score: 103 n. Education: HS Letter o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: GWOTSM, ASR r. Administrative Separation Board: Yes s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 12 July 2007, for a period of 6 years and 25 weeks. He was 19 years old at the time of entry and had a high school letter. His record is void of any significant awards of valor and achievement; however, he completed 2 years, 5 months, and 7 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Bragg, NC. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 9 January 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct. Specifically for: a. being disrespectful towards an NCO (080408 and 080428), b. making a false official statement (080408 and 080917) and c. failing to report at the time prescribed to the motor pool and disobeying a order from three NCOs (080917). 2. Based on the above pattern of misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 12 January 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested his case be considered by an administrative separation board, and elected to submit a statement in his own behalf (NIF). The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The battalion commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge and the brigade commander recommended an under other than honorable conditions discharge. 4. On 5 March 2009, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 1 April 2009, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions; however, they recommended the discharge be suspended for a period of six months. 6. On 23 April 2009, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than conditions. However, the execution of the discharge was suspended for a period of six months contingent upon the applicant not engaging in conduct similar to that for which the separation was approved, but then suspended, or otherwise fails to meet the appropriate standards of conduct and duty performance the separation authority may vacate the suspense of the approved action and execute the separation. 7. On 23 October 2009, the unit commander notified the applicant of her intent to recommend the suspension of his approved under other than honorable conditions discharge be vacated due to his arrest for tampering with a vehicle on 2 October 2009. The intermediate commanders recommended approval of the vacation of the suspended separation action with an under other than honorable conditions discharge. 8. On 19 November 2009, the separation authority vacated the suspended separation action, waived further rehabilitation efforts and directed the applicant’s discharge with characterization of service of under other than honorable conditions. 9. The applicant was discharged from the Army on 18 December 2009, with a characterization of service of under other than honorable conditions, under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 10. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Incident/Investigation Report and Serious Incident Report, dated 2 October 2009, reflects the applicant was the subject of an investigation for tampering with a vehicle. 2. DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 1 April 2009, reflects the applicant appeared before an administrative separation board. 3. Memorandum of Understanding, dated 2 November 2009, reflects the applicant resolved the issue of entering the property of Mr. O. The applicant was ordered to pay a $60 court fee. 4. Article 15, dated 28 October 2008, for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order on three occasions (080917), and making a false official statement (080818). The punishment consisted of forfeiture of $673 pay per month for two months and 45 days of extra duty and restriction (FG). 5. Article 15, dated 23 May 2008, for being disrespectful towards an NCO and disobeying a lawful order (080428). The punishment consisted of a reduction to the grade of E-1, forfeiture of $673 pay per month for two months, and 45 days of extra duty and restriction (FG). 6. Article 15, dated 16 April 2008, for being disrespectful towards an NCO and making a false official statement (080408). The punishment consisted of a reduction to the grade of E-2, forfeiture of $352 pay for one month and 14 days of extra duty and restriction (CG). 7. DA Form 3822-R (Report of Mental Status Evaluation), dated 22 December 2008, reflects the applicant had a clear and normal thought process and content, was mentally responsible and could distinguish between right and wrong. He was diagnosed with work stress on Axis IV. 8. Several negative counseling statements, dated between 24 January 2008 and 5 October 2009, for being arrested, failure to report, disrespect towards an NCO, failure to follow and disobeying orders, being late to formation, lying to an NCO, and initial and monthly counseling. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 28 April 2014, a DD Form 214, three self-authored statements, dated 22 March 2014, an operative report, dated 15 August 2008, a chronological record of medical care, dated 5 August 2008, a partial discharge packet, a memorandum of understanding, dated 2 November 2009, a letter from Mr. O, dated 27 October 2009, three letters of support, and a signature verification form, dated 28 April 2014. 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 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 12b, for a pattern of misconduct. 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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a general, under honorable conditions or a fully honorable discharge. The applicant’s record of service was marred by three Article 15s for multiple violations of the Uniform Code of Military Justice, an arrest for tampering with a vehicle and several negative counseling statements. 3. The applicant requests a change in the narrative reason for the discharge. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct. The regulation further stipulates that no deviation is authorized. 4. 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. 5. The applicant contends he should have been medically boarded but was advised to fight the MEB and promised to deploy; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. 6. Moreover, 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. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend 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: 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) AR20140009583 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1