IN THE CASE OF: Mr. BOARD DATE: 5 November 2014 CASE NUMBER: AR20140014373 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the characterization of service was too harsh based on the applicant’s combat service and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to E-2/PV2. 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 general, under honorable conditions or a medical and a change to his narrative reason for discharge. 2. The applicant states, in effect, that he believes his disciplinary problems were caused by his PTSD. The applicant contends he served in Afghanistan and during his short tour in combat; his vehicle was hit by an IED several times. When he returned from deployment, his problems began. He tried to get help; he was given medication that gave him bad side effects. His mental and medical conditions were not treated. He was going to a medical board, but due to his discipline problems his unit gave up on him. After being discharged and talking to other veterans, he feels that his discipline problems of drinking and smoking were related to his military service. He believes he suffers from PTSD and that the military should consider helping him. The stress of being in combat resulted in him having discipline issues and no one knew and wanted to take the time to help him. He believes he did his best and should not have to suffer the rest of his life for serving his country during a time of war. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 11 August 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 7 January 2009 d. Reason/Authority/SPD/RE: Pattern of Misconduct, AR 635-200, Chapter 14, paragraph 14-12b, JKA, RE-3 e. Unit of assignment: 546th MP Co, 385th MP Bn, 3d SB, Fort Stewart, GA f. Current Enlistment Date/Term: 2 November 2006, 3 years g. Current Enlistment Service: 2 years, 2 months, 6 days h. Total Service: 3 years, 9 months, 23 days i. Time Lost: None j. Previous Discharges: USAR-050315-050727/NA ADT-050728-060309/HD USAR-060310-061101/HD k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 31B10, Military Police m. GT Score: 109 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan (070214-070621) q. Decorations/Awards: GWOTSM, NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the United States Army Reserve (USAR) on 15 March 2005 for a period of 8 years. After serving 1 year, 7 months, and 17 days, his enlistment was terminated as a result of his immediate enlistment in the Regular Army. The applicant enlisted in the Regular Army on 2 November 2006, for a period of 3 years. He was 19 years old at the time of enlistment and a high school graduate. He was serving at Fort Hood, TX when his discharge was initiated. His record indicates he served a period of combat in Afghanistan and achieved the rank of PFC/E-3. The record does not contain any evidence of acts of valor or meritorious achievements. He completed 3 years, 9 months, and 23 days of total military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 3 September 2008, 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 pattern of misconduct. Specifically for the following offenses: a. failure to report to his appointed place of duty x 3 (070719, 070724, and 070815), b. failure to obey a lawful regulation, resisted arrest, and was drunk and disorderly (080205), and c. receiving several counselings on numerous offenses. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 10 September 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board and indicated his intentions to submit a statement on his behalf of the Board. 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 discharge. 4. On 21 October 2008, the applicant's request for a personal appearance before an administrative separation board was approved. On 3 December 2008, the applicant was notified to appear before an administrative separation board on 18 December 2008 and advised of his rights. 5. On 12 December 2008, the applicant consulted with legal counsel again, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board and did not submit a statement on his behalf. 6. On 19 December 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 7. The applicant was discharged from the Army on 7 January 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, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 8. 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, imposed on 4 September 2007, for failure to go at the time prescribed to his appointed place of duty x 3 (070719, 070724, and 070815). The punishment consisted of reduction to the grade of E-2, forfeiture of $340.00 (suspended) and extra duty and restriction for 14 days (FG). 2. Memorandum, dated 15 September 2008, indicates the applicant received a SCM, on 5 February 2008, for violation of Article 92, UCMJ for failure to obey a lawful regulation, Article 95, for resistance of arrest, and Article 134 for drunk and disorderly conduct and indecent assault. The punishment consisted of 30 days confinement and reduction in grade. 3. Article 15, imposed on 8 July 2008, for failure to go at the time prescribed to his appointed place of duty (080202), disobeying a lawful order (080202), and wrongful possession of marijuana between (080405 and 080505). The punishment consisted of forfeiture of $650.00 pay per month for two months, and extra duty and restriction for 45 days (FG). 4. A CID Report dated 12 December 2007, that indicates the applicant was the subject of an investigation for communicating a threat, indecent assault, resisting apprehension, failure to obey general order, and underage drinking. 5. Report of Mental Status Evaluation, dated 6 February 2008, indicating the applicant had been diagnosed with for an adjustment disorder, alcohol dependence, opioid abuse, personality disorder, and multiple orthopedic injuries. However, it was determined by the staff psychiatrist, that the applicant was mentally sound and able to appreciate any wrongfulness in his conduct and was also capable of conforming his conduct to the requirements of the law. He had the mental capacity to understand and participate in Board or other administrative proceedings. The staff psychiatrist recommended the applicant continue with the MEB process; and commented that the applicant would receive immediate follow up at DMHA and ASAP and should be counseled to attend all scheduled follow-ups. He was cleared for all administrative action. 6. Three negative counseling statements dated between 25 July 2007 and 3 December 2007, for failure to appear at his appointed place of duty, indecent assault, and underage drinking. 7. DD Form 458 (Charge Sheet) dated 22 January 2008 charging the applicant with violating Article 92 (one specification), Article 95 (one specification) and Article 134 (one specification); 8. a 24 January 2008 offer to plead guilty to charges; a 29 January 2008 memorandum informing the applicant of the date and time of his Summary Court-Martial and confinement order sentencing the applicant to 30 days confinement as a result of his being found guilty of all specifications. 9. A military protective order dated 19 October 2007 directing he have no contact with a Ms. KCF. 10. Uniform Traffic Citation, Summons and Accusation from the City of Hinesville, GA Police Department dated 14 November 2007 and record of court proceedings finding the applicant guilty of improper lane changing and failure to appear and placing him on probation for 12 months and fining him $384.00. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, DD Form 149, a veteran information packet (9 pages), character statements (3), and a letter from C.A., LCSW at the Chattanooga Outpatient Clinic, Chattanooga, TN. POST-SERVICE ACTIVITY: None were 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, 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 was carefully considered. However, after examining the applicant’s record of service, 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 fully honorable discharge. The applicant’s record of service was marred by a Summary Court-Martial, two Article 15s for multiple violations of the Uniform Code of Military Justice, CID report, 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 contends his disciplinary problems were the result of service connected PTSD and that his unit did not try to help him. However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The record shows that on 6 February 2008, the applicant was diagnosed with an adjustment disorder, alcohol dependence, opioid abuse, personality disorder, and multiple orthopedic injuries. It was determined by the staff psychiatrist, that the applicant was mentally sound and able to appreciate any wrongfulness in his conduct and was also capable of conforming his conduct to the requirements of the law. 5. Although the staff psychiatrist recommended the applicant continue with the MEB process; it was determined the applicant had the mental capacity to understand and participate in Board or other administrative proceedings. Furthermore, 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. 6. Furthermore, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts; which resulted in the initiation of separation action against him. 7. 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. 8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. BOARD DETERMINATION AND DIRECTED ACTION: After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s combat service and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to E-2/PV2. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 5 November 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 3 No Change: 2 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: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: E-2/PV2 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) AR20140014373 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1