IN THE CASE OF: BOARD DATE: 22 September 2014 CASE NUMBER: AR20140012571 ___________________________________________________________________________ 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 change the characterization of his service from general, under honorable conditions to uncharacterized, perhaps to include changing the narrative reason for his discharge. 2. The applicant states, in effect, his discharge was improper because he was under the care of military doctors during his discharge. He has been diagnosed with PTSD and depression, and he should have been medically discharged. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 July 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 28 November 2007 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Paragraph 14-12b, JKA, RE-3 e. Unit of assignment: Co A, 2nd Bn, 81st AR, 194th Armored Bde, Fort Knox, KY f. Current Enlistment Date/Term: 6 April 2005, 5 years (NIF) g. Current Enlistment Service: 2 years, 7 months, 10 days h. Total Service: 12 years, 6 months, 14 days i. Time Lost: 12 days j. Previous Discharges: RA (950503-971030) / HD RA (971031-020226) / HD RA (020227-050405) / HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 19D20, Cavalry Scout m. GT Score: 107 n. Education: HS Graduate o. Overseas Service: Germany, Kosovo (period NIF), SWA p. Combat Service: Iraq (040316-050221) q. Decorations/Awards: ARCOM-4; AAM; AGCM-2; NDSM; GWOTEM GWOTSM; KCM; AFSM; NPDR-2; ASR; OSR-4 JMUA; VUA; CAB r. Administrative Separation Board: No, conditionally waived s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 3 May 1995, (although his DD Form 214 shows 15 May 1995 (NIF), and reenlisted three times thereafter. The latter reenlistment is reflected as 6 April 2005, for a period of 5 years (NIF). He was 24 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 19D20, Cavalry Scout. He served in Germany, Kosovo, and Iraq. He earned four ARCOM awards and an AAM. He completed 12 years, 6 months, and 14 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 30 August 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct for his conduct on and off duty; being entirely incompatible with military service; lacking the potential for continued Army service; and rehabilitative efforts no longer being practical. The specifics involve having three domestic violence offenses and receiving counseling statements according to the following incidents: a. being charged with domestic violence offense with minor injuries and 4th degree assault (060904), although the charge was dismissed (061109); b. being charged with domestic violence with minor injuries and 4th degree assault (070119), although the charge was dismissed, and while having a military protective order and two emergency order of protection and summons; c. being charged with domestic violence with minor injuries and 4th degree assault (070325), and being found guilty (070725) and receiving a sentence of 10 days civilian confinement being 1 August 2007; d. being absent from his place of duty (060822); e. missing the first formation (060824) receiving a summarized Article 15 (060912); f. missing the first formation (060907) and receiving a summarized Article 15 (060912); g. disobeying CPT P by violating a no-contact order (070325) and receiving a FG Article 15 (070403); and h. being absent from his place of duty due to civilian confinement (070325) and receiving a FG Article 15 (070403). 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 21 September 2007, 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 receiving a characterization of service no less favorable than general, under honorable conditions and submitted a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions by the battalion commander and a general, under honorable conditions discharge by the brigade commander. 4. On 31 October 2007, the GCMCA 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 28 November 2007, with a characterization of service of general, under 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. 6. The applicant’s record of service indicates 12 days of time lost for being confined by civil authorities from 25 March 2007 through 26 March 2007, and from 2 August 2007 through 11 August 2007. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Report of Mental Status Evaluation report, dated 4 June 2007, indicates no diagnosis of Axis I by a mental health specialist and endorsed by a licensed social worker. 2. Article 15, dated 3 April 2007, for disobeying a commissioned officer (070325) and absenting himself from his place of duty (070325). The punishment consisted of a reduction to the grade of E-5, forfeiture of $1,275 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 3. Summarized Article 15, dated 12 September 2006, for failing to go to his appointed place of duty at the prescribed time on two separate occasions (070907 and 070824). The punishment consisted of extra duty for 14 days. 4. Eleven negative counseling statements, dated between 24 August 2006 and 27 March 2007, for being recommended for separation for patterns of misconduct based on having two past arrests for domestic assault; not being fully cooperative with the ASAP counselors; being recommended for a FG Article 15 for disobeying a commissioned officer and being absent from his duty; leaving his appointed place of duty; failing to obey an order or regulation; being arrested by civil authorities; being a high risk; being involved in an alleged domestic abuse with 4th degree assault; and missing first formations. 5. A MP Blotter Report, dated 5 April 2007, and an MP Report, dated 27 March 2007, indicates the applicant was the subject of an investigation for civil apprehension for 4th degree assault, domestic violence, and minor injuries (070325), and additional offense of child abuse, respectively. 6. A MP Blotter Report, dated 24 January 2007, indicates the applicant was the subject of an investigation for civil apprehension for 4th degree assault, domestic violence, and minor injuries (070119). 7. A MP Blotter Report and an MP Report, dated 6 September 2006, indicates the applicant was the subject of an investigation for civil apprehension for 4th degree assault, domestic violence, and minor injuries. A detailed statement provided by 1SG G regarding the applicant’s arrest on 4 September 2006, and upon receiving information from SSG B, the victim in a domestic violence incident. 8. Numerous civilian court documents relating to 4th degree assault/domestic violence/minor injuries (060903), (070306), (070119), and (070325). 9. Domestic Violence Petition/Motion, dated 22 January 2007; Order of Protection, dated 6 February 2007; Military Protective Order, dated 22 January 2007; and two Emergency Order of Protection and Summons, dated 22 January 2007, are self-explanatory. 10. Memorandum to the applicant’s commander, dated 4 April 2007, rendered by an ASAP director, provides a history of the applicant’s enrollment in the program. 11. TRADOC Operations Report, dated 4 September 2006, indicates the applicant being arrested by civil authorities for possible domestic abuse and being issued a no-contact order. 12. DA Form 4187-E, Personnel Action, dated 13 August 2007, indicates the applicant’s duty status had changed from CCA to PDY, effective 11 August 2007. 13. DA Form 4187-E, Personnel Action, dated 2 August 2007, indicates the applicant’s duty status had changed from PDY to CCA (confined by civilian authorities), effective 1 August 2007, after being sentenced to a 10-day civil confinement regarding third offense of domestic violence. 14. DA Form 4187-E, Personnel Action, dated 27 March 2007, indicates the applicant’s duty status had changed from CCA to PDY, effective 26 March 2007, after being arrest on 25 March 2007. 15. DA Form 4187-E, Personnel Action, dated 26 March 2007, indicates the applicant’s duty status had changed from PDY to CCA (confined by civilian authorities), effective 25 March 2007, after being arrest on 25 March 2007 for not complying with a no-contact order and second offense of domestic violence. EVIDENCE SUBMITTED BY THE APPLICANT: On 17 September 2014, the applicant provided a copy of his VA Continuity of Care Document, dated 16 September 2014. 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 "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. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 perhaps to include a change to the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the 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 pattern of misconduct involving 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 two Article 15 actions for violations of the Uniform Code of Military Justice, numerous negative counseling statements, numerous documented actions in a civil court, and two incidents of confinement by civil authorities. 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 his discharge was improper because he was under the care of military doctors during his discharge; he had been diagnosed with PTSD and depression; and that he should have been medically discharged. However, the service record contains no evidence of a 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. Regarding the applicant’s contention that he should have been medically discharged, 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. Accordingly, the rationale the applicant provided as the basis for what he believes was an improper discharge is not supportable by the evidence contained in the record. In addition, the evidence he submitted indicates a personal history of traumatic brain injury, a condition noted by the VA; however, there is no further information on this medical condition. 5. The record reflects the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 6. 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. 7. 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: 22 September 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: 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) AR20140012571 Page 2 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1