IN THE CASE OF: BOARD DATE: 26 January 2015 CASE NUMBER: AR20140015432 ___________________________________________________________________________ Board Determination and Directed Action 1. 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 characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service and the medical issues surrounding his discharge, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. 2. Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity, and as approved by the separation authority, voted to change the applicant’s reason for discharge, authority, separation code, and reentry code, and directed that a new DD Form 214 be issued reflecting the following changes: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c b. block 26, separation code changed to JKQ c. block 27, reentry code changed to 3 d. block 28, narrative reason for separation changed to Misconduct (Serious Offense) 3. Except for the foregoing modifications, the Board determined the discharge was both proper and equitable. 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. 2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to receive medical care. He contends his wrongful use of drugs was the result of suffering from extreme PTSD and trying to find relief from the pain. He contends, he has been in therapy for three years for PTSD. During his period of service he was told to "suck it up." DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 25 August 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 20 May 2009 d. Reason/Authority/SPD/RE: Misconduct (Drug Abuse), AR 635-200, Chapter 14 Paragraph 14-12c(2), JKK, RE-4 e. Unit of assignment: HHC, 2nd Bn, 11th IN, Fort Lewis, WA f. Current Enlistment Date/Term: 3 April 2006, 5 years g. Current Enlistment Service: 3 years, 1 month, 18 days h. Total Service: 4 years, 11 months, 12 days i. Time Lost: None j. Previous Discharges: RA-040609-060402/HD k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 104 n. Education: GED o. Overseas Service: Southwest Asia p. Combat Service: Iraq (051221-061121) q. Decorations/Awards: AGCM, ICM-w/2CS, NDSM, GWOTSM, ASR, OSR CIB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 9 June 2004, for a period of 3 years and 16 weeks. On 3 April 2006, he reenlisted for a period of 5 years. He was 20 years old at the time of reenlistment and had a high school equivalency (GED). His record indicates he served one period of combat in Iraq; earned several awards to include the AGCM and CIB. He was serving at Fort Lewis, WA when his discharge was initiated. He completed 4 years, 11 months, and 12 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 7 April 2009, 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. failing to be at his appointed place of duty x 3 (071102, 071113, and 080602), b. disrespecting a noncommissioned officer (071102), c. failing to pay just debt (080502), d. driving a vehicle while drunk (080530), e. wrongfully using marijuana x 2 (081114 and 081215), and f. wrongfully using amphetamines and methamphetamines (090112). 2. Based on the above misconduct, the unit commander recommended an under other than conditions discharge and advised the applicant of his rights. 3. On 13 April 2009, the applicant waived his right to consult with legal counsel (although the document was signed by legal counsel), was advised of the impact of the discharge action, waived his right to an administrative separation board (which he was not entitled to), and did not submit a statement on his own 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 with an under other than honorable conditions discharge. 4. On 14 May 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 5. The applicant was discharged from the Army on 20 May 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKK and an RE code of 4. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Summary Court Martial dated 8 August 2008, for driving a truck while drunk (080530) and without authority failed to go at the time prescribed to his appointed place of duty (080602). The punishment consisted of reduction to E-1, forfeiture of $898.00 pay for one month, and restriction for 45 days. 2. There three positive urinalysis reports contained in the record coded; IR, (Inspection Random), 14 November 2008, THC/Marijuana; IU, (Inspection Unit), 15 December 2008, THC/Marijuana; and IU, 12 January 2009, Methamphetamines. 3. Several negative counseling statements dated between 2 November 2007 and 2 June 2008, for failure to report to accountability formation on time, failure to keep a means of contact, disrespect of a noncommissioned officer, failure to report to counseling, failure to appear to duty in the proper uniform, failing to pay a creditor, being suspected of drinking and driving (080530 and 080601), and a vehicle accident (080530 and 080601). 4. A Mental Status Evaluation, dated 21 October 2008, which indicates the applicant was mentally responsponsible for his behavior, could distinguish right from wrong, and possesed sufficient mental capacity to participate in any administrative proceedings. The applicant was cleared for administrative action from a behavioral health perspective deemed appropriate by command pending clearance from Neuropsychology regarding possible TBI symptoms. The applicant was cleared for administrative action from a Neuropsychological perspective. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, a statement in support of claim from the Department of Veterans Affairs, a self-authored letter (2 pages), certificate of completion from the city of Vancouver, Washington, CSNW service history by client and episode, dated 18 February 2011 and 7 September 2012, letter from Western Psychological & Counseling Services, P.C., dated 8 August 2014, a copy of his enlistment contract, dated 10 May 2004 and 3 April 2006, enlisted record brief, dated 18 May 2009, and his DD Form 2-1, dated 15 June 2004. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. 2. After examining the applicant’s record of service, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. Length and quality of service: The applicant served 3 years, 1 month, and 18 days of a 5 year enlistment which started on 3 April 2006; and a total of 4 years, 11 months and 12 days. b. The record confirms the applicant received several awards, specifically the AGCM and the CIB which was for a tour in combat. c. The applicant’s post-service accomplishments as provided in one of the documents with his application that indicates the applicant has been working on his issues with PTSD, anxiety, and depression as indicated by the LICSW, LCSW at the Western Psychological & Counseling Services. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. In view of the foregoing, it appears the characterization of the discharge is now inequitable, and it is recommended the Board grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. 5. Furthermore, notwithstanding the propriety of the applicant's discharge, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (drug abuse), authority as AR 635-200, paragraph 14-12c(2), and SPD code of JKK. However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense). 6. Therefore, basis of equity and as approved by the separation authority, the analyst recommends the board make the following changes: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c b. block 26, separation code changed to JKQ c. block 27, reentry code changed to 3 d. block 28, narrative reason for separation changed to Misconduct (Serious Offense) SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 26 January 2015 Location: Washington, DC Did the Applicant Testify? Tender Offer Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 Reason Change: 5 No Change: 0 (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: Misconduct (Serious Offense) Change Authority for Separation: AR 635-200, Paragraph 14-12c Change RE Code to: 3 Grade Restoration to: NA Other: SPD Code to JKQ 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) AR20140015432 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1