1. APPLICANT’S NAME: a. Application Date: 11 May 20015 b. Date Received: 12 May 2015 c. Counsel: None 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general, under honorable conditions discharge to honorable. The applicant states, in effect, his chain of command was unjust in their decision to chapter him. He had just returned from deployment and was dealing with a friend’s suicide at the time of the incident, which got him in trouble and none of this was taken into consideration. He was not given a chance to plead his case. He desires to serve his country. The applicant was scheduled for a personal appearance hearing to be conducted at Arlington, Virginia, on 7 December 2015. However, after carefully examining the applicant’s record of service during the period of enlistment under review, the Board determined the discharge was improper. On 3 December 2015, the Board tendered the applicant an offer and he accepted by e-mail at 4:36 pm. The Board noted the unit commander used “Board Procedures” when notifying the applicant he was initiating action to separate him under the provisions of Chapter 14, AR 635-200, by reason of pattern of misconduct. By using “Board Procedures” the authority for approval of the applicant’s separation rested with the General Court-Martial Convening Authority (GCMCA). The Board determined someone other than the GCMCA approved the applicant’s discharge. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority. This action does not entail a change to the reentry eligibility (RE) code. (Board member names available upon request.) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE3 / General, Under Honorable Conditions Discharge b. Date of Discharge: 31 December 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 November 2011 and 18 November 2011 (2) Basis for Separation: On 2 November 2011, the applicant was informed of the following reasons for his discharge: Being enrolled into Army Substance Abuse Program (ASAP) twice prior to this incident (23 February 2006 and 5 March 2008): Being command referred again to ASAP where he was deemed ineligible for service due to being enrolled multiple times previously (21 April 2011); On 18 November 2011, the applicant was informed of the following reasons for his discharge; Being disrespectful towards a superior noncommissioned officer by saying "you're lucky I have these handcuffs on, or I'd kick your ass, and take these cuffs off and I'll fuck you up!" (9 April 2011); Making threats towards three Service members by saying "I'm going to kill you, I'm going to kick all of your asses!" (9 April 2011); Being drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces (9 April 2011); Being enrolled in ASAP three times in his career, he had two prior ASAP failures with the enrollment dates of (23 February 2006 and 5 March 2008); Being given the opportunity to receive services from ASAP, but due to his hostile and inappropriate behavior, he was released from ASAP again on (2 August 2011) (3) Recommended Characterization: 2 November 2011, a General, Under Honorable Conditions Discharge and 18 November 2011, an Under Other Than Honorable Conditions Discharge (4) Legal Consultation Date: 2 November 2011, waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than honorable (5) Administrative Separation Board: None (6) Separation Decision Date/Characterization: 12 December 2011 / General, Under Honorable Conditions Discharge 4. SERVICE DETAILS: a. Date/Period of Enlistment: 14 October 2009 / 3 years b. Age at Enlistment/Education/GT Score: 26 Years / GED Certificate / 116 c. Highest Grade Achieved/MOS/Total Service: SGT /E-5 / 11B10, Infantryman / 7 years / 1 month and 27 days d. Prior Service/Characterizations: RA (4 November 2004-30 January 2008)/HD RA (31 January 2008-13 October 2009)/HD e. Overseas Service/Combat Service: SWA/Iraq (24 July 2006-22 July 2007)/Afghanistan (24 April 2009-5 April 2010) f. Awards and Decorations: ARCOM, AAM-2, NDSM, ACM-W/CS, ICM-W/2CS, GWOTSM, KDSM, HSM, NPDR, ASR, OSR-3, NATO MDL, JMUA, VUA g. Performance Ratings: Annual Report (1 November 2008 thru 31 October 2009) Fully Capable, 2/2 h. Disciplinary Action(s)/Evidentiary Record: FG Article 15 dated 6 June 2011, for being disrespectful in language toward SFC A.G., a superior noncommissioned officer by saying "you're lucky I have these handcuffs on, or I'd kick your ass, and take these cuffs off and I'll fuck you up!" (9 April 2011); wrongfully using provoking words towards SGT T.C., SGT W.C., and PFC A.Y., by saying "I'm going to kill you, I'm going to kick all of your asses!" (9 April 2011); and being drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces (9 April 2011); reduction to SPC/E-4, forfeiture of $1,162 pay for two months (suspended), extra duty for and restriction for 45 days Military Police Report dated 18 April 2011, indicates the applicant was under investigation for disorderly conduct (drunkenness), provoking speech, resisting apprehension, disrespect to an NCO, and communicating a threat off post The applicant received an initial counseling statement and several negative counseling statements for various acts of misconduct i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: A memorandum for Trial Defense Services counsel dated 28 November 2011, indicates the applicant has been treated since June 2011 by Psychiatry and found to have alcohol dependence with physiologic dependence in early remission, remote history of polysubstance dependence (THC, cocaine, ecstasy) from age 14 to 21 in full sustained remission since prior to military service, and an anxiety disorder not otherwise specified (PTSD Symptoms). He was recommended for a Chapter 9 (Failure of Alcohol Rehab) by ASAP July or August 2011. DA Form 2807-1 (Report of medical History), dated 1 September 2011, indicates the applicant underwent mental health evaluation and treatment for PTSD, anxiety, depression and anger. 5. APPLICANT-PROVIDED EVIDENCE: Online application (five pages); applicant’s handwritten statement (six pages); Enlisted Record Brief (ERB); DA Form 2166-8 (NCO Evaluation Report, two pages); DA Form 2627 (Record of Proceedings Under Article 15, UCMJ, two pages); military police report (eight pages); two DA Forms 4856 9Developmental Counseling Form); Chapter 9 separation packet (seven pages) and a DD Form 214 (two pages). 6. POST SERVICE ACCOMPLISHMENTS: None provided by the applicant. 7. REGULATORY CITATION(S): 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. Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 8. DISCUSSION OF ISSUE(S): The applicant requests an upgrade of his general, under honorable conditions discharge to honorable. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. Based on the legal opinion the discharge is improper. As a Soldier with more than six years of service at the time of initiation of the proposed separation, the applicant was entitled to an administrative separation board. He was properly notified he was being recommended for an under other than honorable conditions discharge characterization, and the separation authority would be the General Court-Martial Convening Authority (GCMCA). The separation is improper because the brigade commander approved the discharge, rather than the GCMCA, and there is no indication the applicant waived his right to a board. Even if he had waived his right to a board, it would not have authorized the brigade commander to be the separation authority in his case. The harmless error rule cannot be applied in this case in conjunction with the presumption of Government regularity to assume he waived his board in return for the general, under honorable conditions discharge and he received the benefit of his bargain. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change SPD to: JFF, AR 635-200, Chapter 5-3 e. Change RE-Code to: No Change f. Restore Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150008737 1