IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090013100 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that all of his awards be listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty), his rank/grade be restored to specialist (SPC)/E-4; all reference to his misconduct be removed from his records, and his reentry eligibility (RE) code be changed to "1."

2.  The applicant states he was diagnosed with post traumatic stress disorder (PTSD) while on active duty.  The Army should have helped him instead of trying to "screw" him.  He is a great combat Soldier and is attempting to enter the Texas A & M University Corp of Cadets to become an officer.  He needs to have the corrections made in order to continue to serve his country.

3.  The applicant provides copies of his DD Form 214; award certificates for two Army Achievement Medals, Army Good Conduct Medal, and the Army Commendation Medal; a 2nd Infantry Division Certificate of Achievement; an Oath of Reenlistment; two Honorable Discharge Certificates; three DA Forms 638 (Recommendation for Award); and three DA Forms 4187 (Personnel Action) advancing him from private (PV1)/E-1 through SPC/E-4.

CONSIDERATION OF EVIDENCE:

1.  The applicant's full service medical records are believed to be on permanent loan to the Department of Veterans Affairs (DVA) and are not available for review.

2.  The applicant enlisted in the Regular Army on 7 July 2000, completed training, and served in military occupational specialty (MOS) 19K (Armor Crewman).  He reenlisted on 25 March 2002.

3.  Headquarters, 2nd Battalion, 72nd Armor Regiment [Korea], Permanent Orders Number 281-02, dated 8 October 2001, awarded the applicant the Army Achievement Medal.

4.  During his first period of enlistment he was reported absent without leave (AWOL) from 24 October 2001 through 14 November 2001 for 22 days.  Disciplinary action taken for this offense, if any, is not of record.

5.  The applicant was advanced to SPC/E-4, effective 1 April 2002.

6.  On 17 June 2002 the applicant provided a urine specimen that tested positive for cocaine.  Disciplinary action taken for this offense, if any, is not of record.

7.  Headquarters, 3rd Battalion, 8th Cavalry Regiment, 1st Cavalry Division, Fort Hood, TX, Permanent Orders Number 268-31, dated 25 September 2002, awarded the applicant the Army Achievement Medal.

8.  Charlie Detachment, 15th Personnel Services Battalion, Fort Hood, Permanent Orders Number 260-074, dated 17 September 2003, awarded the applicant the Army Good Conduct Medal (1st award) for the period 7 July 2000 to 6 July 2003.

9.  Headquarters, 3rd Brigade Combat Team, 1st Cavalry Division [Iraq], Permanent Orders Number 01-1607, dated 31 January 2005, awarded the applicant the Army Commendation Medal.

10.  The applicant was AWOL three times during his second enlistment:
25 November 2002 - 21 January 2003 (67 days), 18 July 2005 - 4 January 2006 (170 days), and 28 February 2006 - 23 March 2006 (23 days).

11.  On 17 January 2006 the applicant provided a urine specimen as a part of his command's policy of determining a Soldier's fitness for duty for all Soldiers who had been AWOL or on extended leave.  This test returned a positive result for marijuana.

12.  A Military Medical Record Supplemental form, dated 24 February 2006, states the applicant's command requested he be evaluated following an 

argument with a co-worker.  A note indicates he was being seen for PTSD.  A Behavior Template form associated with the treatment record shows the applicant was diagnosed with acute anxiety and has "Eval for PTSD" lined out.

13.  On 28 February 2006, in accordance with his pleas, a summary court-martial found the applicant guilty of three periods of AWOL, wrongful use of marijuana, and communicating a threat against a first sergeant.  He was sentenced to reduction to pay grade E-1 and 30 days confinement (of which he served
24 days).

14.  On 13 April 2006, the applicant underwent a Mental Health Status Evaluation.  The examining psychologist found no major abnormalities but diagnosed the applicant with adjustment disorder with depressed mood.  It cleared him for any administrative action deemed appropriate and did not mention any reference to PTSD.

15.  On 26 April 2006, the applicant's command initiated separation proceedings under Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  The commander cited the applicant's three periods of AWOL, his wrongful use of marijuana, and his communicating a threat toward a first sergeant as the basis for the separation action.  The unit commander recommended he be discharged under other than honorable conditions (UOTHC).

16.  On 26 April 2006, the applicant acknowledged that his command had initiated separation proceedings under Army Regulation 635-200, paragraph 14-12c, for the commission of a serious offense.

17.  The intermediate commander concurred with the recommendation and the separation authority directed that the applicant be discharged with a UOTHC in accordance with Army Regulation 635-200, paragraph 14-12c, commission of a serious offense.

18.  The applicant's original DD Form 214 shows the following:

	a.  discharge under other than honorable conditions with 5 years, 2 months, and 16 days of creditable active service and 276 days of lost time;

	b.  separation in pay grade E-1;



	c.  separation under Army Regulation 635-200, paragraph 14-12c(2) for misconduct - drug abuse with a Separation Code of JKK and an RE-4;

	d.  service in Iraq from 18 March 2004 through 17 March 2005; and

	e.  in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) award of the National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, and the Army Service Ribbon,

19.  On 2 January 2008, the Army Discharge Review Board (ADRB) granted the applicant an upgrade of his characterization of service from UOTHC to honorable.  The ADRB determined the applicant's command improperly used command-directed drug testing results (biochemical test result) in the characterization of his service, which was considered limited-use information.  However, the ADRB held that the reason for his discharge and RE Code was fully supported by the record and therefore, remains both proper and equitable.

20.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, including the Army Achievement Medal.

21.  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 states, in pertinent part, that the SPD code of JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c (for commission of a serious offence), paragraph 14-12c(1) (for commission of a serious offence- AWOL), and/or paragraph 14-12c(2) (commission of a serious offence-drug abuse).  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper code to assign members separated with this SPD code.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense.  Paragraph 14-12c(2) states "Abuse of illegal drugs is serious misconduct."


23.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days and Article 134, communicating a threat.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was diagnosed with PTSD while on active duty.  The Army should have helped.  He is a great combat Soldier and is attempting to enter the Texas A & M University Corps of Cadet to become an officer.  He needs to have the corrections made in order to continue to service his country.

2.  The applicant was awarded the Army Commendation Medal, two Army Achievement Medals, and the Army Good Conduct Medal that are not listed on his DD Form 214.  Therefore, his records should be corrected to include these awards.

3.  The applicant has not provided any relevant evidence and the available documents only casually refer to a diagnosis of PTSD.  The applicant was afforded a mental status evaluation that did not include a diagnosis of PTSD.  Since he was not found to be suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right, his claim of PTSD does not demonstrate an injustice in the discharge.

4.  The applicant was reduced to pay grade E-1 as a result of his guilty pleas at his summary court-martial.  He has not provided any evidence and the record does not contain any indication that this reduction in grade was inappropriate or unduly harsh based on the offenses.

5.  During the applicant's five years on active duty he was AWOL on four occasions for a total of 282 days and he tested positive for illegal drug use on two occasions.  He has not provided any documentation to show that these incidents did not occur and there is no valid reason for purging his records of this misconduct.

6.  Changing the reason for his separation would in effect negate the reason the ADRB used to upgrade of his characterization of service and the issue of his characterization of service would have to be reevaluated.

7.  Notwithstanding the ADRB's determination that a technical error occurred warranting an upgrade of the applicant's discharge, the command processed him 
for discharge under Army Regulation 635-200, paragraph 14-12c commission of a serious offense.  At no time during the discharge proceedings did any member of the applicant's chain of command add the additional subparagraph of
14-12c(2) for drug abuse to the discharge reason or authority.  It appears that the "error" in listing the 14-12c(2) on his discharge occurred during the typing of the DD Form 214 and not in the actual discharge process.

8.  Since it has historically been the practice of the Board not to make any correction to a Soldier's records that could conceivably operate to an applicant's disadvantage, the characterization of his service will not be further addressed.

9.  In order to warrant a change in the RE code the applicant's reason for separation would have to be shown to be in error or would have to be changed.  There is no evidence that show his reason for separation was in error or warranted a change.

10.  Based on the foregoing, no change to the applicant's pay grade, reason for separation, RE code, or removal of the references to his misconduct is warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 13 of his DD Form 214 the Army Commendation Medal, Army Achievement Medal with one Oak Leaf Cluster, and the Army Good Conduct Medal.




2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to restoring his rank to 
SPC/E-4, changing his RE code to "1," or removing any and all reference to his misconduct from his records.



      ___________X____________
              CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090013100



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ABCMR Record of Proceedings (cont)                                         AR20090013100



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