IN THE CASE OF: Mr. BOARD DATE: 23 January 2015 CASE NUMBER: AR20140021256 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the former service member’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 as a result it is inequitable. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails restoration of grade to E-4/SPC. 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’s representative requests an upgrade of the former service member’s under other than honorable conditions discharge characterization to honorable. 2. The representative states, in effect, the former service member was not diagnosed at the time of service; however, the condition was subsequently identified by the VA as a service connected disability. Therefore, the representative contends the disability could have been considered as a basis for mitigation in punitive/administrative action for his misconduct. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 15 December 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 3 September 2010 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4 e. Unit of assignment: 1st Battalion, 27th Infantry, Schofield Barracks, Hawaii f. Current Enlistment Date/Term: 13 September 2007/3 years, 18 weeks g. Current Enlistment Service: 2 years, 11 months, 21 days h. Total Service: 2 years, 11 months, 21 days i. Time Lost: None j. Previous Discharges: DEP, 070905-070912, N/A k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 114 n. Education: HS Graduate o. Overseas Service: SWA, Hawaii p. Combat Service: Iraq (080215-090228) q. Decorations/Awards: ICM-2CS, NDSM, GWOTSM, ASR, CIB, OSR-2 r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The former service member enlisted in the Regular Army on 13 September 2007, for a period of 3 years and 18 weeks. He was 18 years old at the time of entry and a high school graduate. He served in Hawaii and Iraq and completed 2 years, 11 months, and 21 days of active duty service. When his discharge proceedings were initiated, he was serving at Schofield Barracks, Hawaii. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 16 June 2010, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c(2). Specifically for failing a urinalysis for methamphetamines. 2. Based on the above misconduct, the commander recommended a general, under honorable conditions discharge. 3. On 17 June 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. 4. The record is void of specific details as to when the intermediate commander reviewed the proposed action and recommended approval, the separation authority’s actions, and the date in which the former service member requested a Chapter 10 in Lieu of Trial by Court-Martial. 5. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. DD Form 214, dated 3 September 2010, reflects the former service member was discharged under the provisions of AR 635-200, Chapter 10, In Lieu of Trial by Court Martial, with a characterization of service of Under Other Than Honorable Conditions, Separation Code of KFS, and a reentry eligibility code of 4. 2. An Article 15, dated 7 May 2010, for wrongful use of dextroamphetamine, dexmethylphenidate, and morphine (on or between 100104 and 100111). The punishment consisted of a reduction to the grade of E-2, forfeiture of $811.00 pay per month for two months, 45 days of extra duty and restriction (FG). 3. MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 11 May 2010, reflects the former service member had a clear and normal thought process and was mentally responsible. However, it was noted in the remarks section of recommendations that the “SM cannot be psychiatrically cleared for administrative separation at this time.” In addition, it further states “upon further evaluation by a behavioral health provider and completion of the recommended treatment, this SM will be given a medical disposition as to whether he is cleared for administrative separation or whether a MMRB/MEB is warranted.” 4. Two counseling statements, dated 15 April 2010 and 25 May 2010, regarding failing a urinalysis and initiation of separation proceedings. EVIDENCE SUBMITTED BY THE APPLICANT: 1. On behalf of the former service member, the representative provided the following documents: a. State of Oregon Certification of Vital Record, dated 28 October 2014, reflects the former service member is deceased as of 14 October 2014 and methadone overdose as the immediate cause of death. b. County of Shasta, Certificate of Live Birth, dated 20 October 1989. c. Secretary of Defense memorandum, dated 3 September 2014, Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (four pages). d. Department of Veterans Affairs (DVA) letter, Oakland Regional Office, dated 15 November 2011, regarding determination on the claim for service connected compensation filed by the former service member (three pages). e. DVA Rating Decision, dated 6 July 2012, reflects the decision made regarding the service connection for post-traumatic stress disorder with secondary polysubstance abuse and traumatic brain injury (five pages). f. DVA letter, Oakland Regional Office, dated 11 July 2012, regarding determination on the claim for service connected compensation filed by the former service member (nine pages). g. DVA Rating Decision, dated 19 November 2012, reflects the decision made regarding the service connection claim for bilateral hearing loss. In addition, the document lists nine additional health ailments subject to compensation (eight pages). h. DVA letter, Oakland Regional Office, dated 3 December 2012, regarding determination on the claim for service connected compensation filed by the former service member (six pages). 2. Letter addressed to the DVA, dated 3 January 2011, written by the former service member. In the letter, the former service member outlines the events that led up to his discharge and the physical and emotional ailments he suffered as a result of his military service. 3. Letter addressed to the Army Discharge Review Board, date unknown, written by the former service member’s parents. The letter chronicles the former service member’s service beginning with his basic training and advanced individual training, his deployment to Iraq, and the mental health issues that he struggled with following his deployment. It addresses the fact that the former service member was diagnosed with PTSD and mTBI and was receiving treatment from a psychiatrist; however, the appointments suddenly ceased following the untimely death of his physician. The letter states the former service member contracted methicillin-ressistant staphylococcus aureus (MRSA) while he served in the Army. The parents request an upgrade to the former service member’s discharge to honorable. POST-SERVICE ACTIVITY: None was provided with the application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. 2. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION AND RECOMMENDATION: 1. The applicant’s representative’s request for an upgrade of the characterization of the former service member’s discharge was carefully considered. 2. After examining the former service member’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to honorable for the following reasons: a. Length of service: The former service member served 2 years and 11 months of a 3-year enlistment. The record is void of the facts regarding circumstances leading to a discharge under chapter 10. Thus the preponderance of his service is assumed to have been honorable. b. Quality of service: The record confirms the applicant received a CIB for a tour in combat. 3. The representative’s contentions regarding the probability that PTSD-like behaviors may have played a major role in the former service member’s actions that led to his discharge were carefully considered. There is a presumption of regularity in the conduct of governmental affairs that is applied in all Army discharge reviews. However, for unusual circumstances such as this, documents that include, but not limited to, admissions into medical facilities, diagnosis of health ailments, prescribed medications, psychiatric care, and a death certificate must be heavily weighted in the decision to grant or deny an upgrade of the discharge. 4. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails restoration of grade to E-4/SPC. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 23 January 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 4 No Change: 1 Reason Change: 4 No Change: 1 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Secretarial Authority Change Authority for Separation: AR 635-200, Chapter 5-3 Change RE Code to: 1 Grade Restoration to: SPC/E-4 Other: Separation Program Designator (SPD) code to JFF 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) AR20140021256 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1