IN THE CASE OF: BOARD DATE: 11 August 2014 CASE NUMBER: AR20140009625 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant explains, in pertinent part and in effect, the events between February 2013 and March 2014, which led to his unjust separation. He asserts that in May 2013, he was diagnosed with very severe sleep apnea. He was given a CPAP machine and received a profile preventing him from participating in field activities. His profile required him to sleep with the machine on for seven to eight hours a night and could not use the machine in an austere environment. During that period, he had already become a target from one of his supervisor, SSG D and his unit commander who were determined to complicate his life for being a Soldier with a medical condition because in their opinion, he was now a useless Soldier. He filed an IG complaint for the unfair treatment by his chain of command. He was being processed for a medical discharge for his sleep apnea. However, he was astounded to find out he was being processed for involuntary separation for an act that he was already punished for under a FG Article 15. His commander ignored his legal representative’s memorandum which indicated there was insufficient evidence to support warranting his discharge. He filed another IG complaint. His only regret is committing the offense for which he is unable to obtain unemployment benefits while looking for employment. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 2 June 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 31 March 2014 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 2nd Bn, 3rd Infantry Regiment, 7th Infantry Division, Joint Base Lewis-McChord, WA f. Current Enlistment Date/Term: 8 February 2011, 4 years g. Current Enlistment Service: 3 years, 1 month, 23 days h. Total Service: 3 years, 1 month, 23 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 42A10, Human Resources Specialist m. GT Score: 109 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (111204-121115) q. Decorations/Awards: ARCOM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL; CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 8 February 2011, for a period of 4 years. He was 30 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 42A10, Human Resources Specialist. He served in Afghanistan. He earned an ARCOM. He completed 3 years, 1 month, and 23 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 5 November 2013, 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 misconduct (serious offense), specifically for the following misconduct: a. stealing a meal card, military property, (130729); b. failing to pay a debt in the amount of $100.00, owed to the Military Star Card Exchange Credit Program (130606); c. failing to report to the 0600 hours first formation (130607); d. failing to prepare his gear for a layout inspection as instructed by SSG D (130607); e. being derelict in the performance of his duties by failing to retrieve the Battalion Leave Book from Staff Duty (130711); and f. being derelict in the performance of his duties by failing to stay awake during the Battalion Organization Inspection Program meeting (130801). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 6 November 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on 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. On 18 March 2014, the separation authority finding that the applicant’s medical condition did not, nor any other circumstances warranted disability processing, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was discharged from the Army on 31 March 2014, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 13 September 2013, for stealing military property, breakfast (130601-130801) and a meal card (130729). The punishment consisted of reduction to the grade of E-1, forfeiture of $358, and 45 days of extra duty, (FG). 2. Eleven negative counseling statements, dated between 5 June 2012 and 8 August 2013, for being processed for involuntary separation; initiation of an Article 15 action; being disrespectful toward an NCO; failing to be at his appointed place of duty at the prescribed time; failing an organization inspection conducted by the brigade S-1; falling asleep during a battalion OIP meeting; being indebted and failing to pay debt; being diagnosed with sleep apnea and being issued a breathing apparatus; reporting issues with updating the finance tracker; failing to follow instructions; disobeying an NCO; and having insufficient funds in his bank account to pay for gear at a sewing shop. 3. Medical record, dated 4 June 2013, provides a report on the applicant’s overnight polysomnogram. 4. Memorandum, undated, subject: Medical Evaluation Review rendered by a division surgeon, in pertinent part and in effect, indicates the applicant’s medical condition was not a direct or substantial contributing cause for the underlying misconduct, and that falling asleep during a meeting and possibly missing morning formations were not relevant to the other charges of misconduct. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement. POST-SERVICE ACTIVITY: The applicant provided none. 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 and to change the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the document and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his 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 serious incidents of 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 an Article 15 for violations of the Uniform Code of Military Justice and numerous 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 contends during that period of being diagnosed with sleep apnea, he had became a target of his immediate chain of command who were determined to complicate his life for being a Soldier with a medical condition because in their opinion, he was now a useless Soldier--he was unjustly separated. Although he indicates he filed IG complaints, he had many other legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance for his asserted unfair treatment prior to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. 5. Furthermore, 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 his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s Article 15 action and numerous negative counseling statements justify serious incidents of misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 6. The applicant contends he was being processed for a medical discharge for his sleep apnea, but was astounded to find out he was being processed for involuntary separation for an act that he was already punished for under a FG Article 15, perhaps a contention that he should have been medically discharged. 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. Moreover, the record reflects the GCMCA considered the applicant’s medical evaluation board proceedings and determined that the medical condition was not a direct or substantial contributing cause to all the conduct that led to the recommendation for his administrative separation. 7. The applicant contends he regrets committing the offense that led to his discharge. Although he references a single incident causing his discharge, its discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 8. The applicant contends his commander ignored his legal representative’s memorandum which indicated there was insufficient evidence to support warranting his discharge. However, 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. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 9. The applicant has expressed his desire for job opportunities and unemployment benefits, and perhaps VA benefits. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, 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. 10. 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: Personal Appearance Date: 11 August 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None 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: No Change Change RE Code to: No Change 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) AR20140009625 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1