BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120012685 


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 reconsideration of his previous request for an upgrade of his general discharge to honorable and amendment to his reentry eligibility (RE) code.

2.  He states:

   a.  He was discharged in April 2010 under chapter 14-12c for the commission of a serious offense.  He knows that what he did was serious and he deserves some consequences for his actions; however, he feels his separation from the military was a bit harsh.  He would rather had been reduced to pay grade E-1 and given a field grade Article 15 or even a Letter of Reprimand.  

   b.  With regard to the serious offense, he had just gotten back from a combat deployment in Afghanistan for one year.  He was seeing combat stress overseas and was seeing a counselor at the behavioral health clinic on post.  He was diagnosed with post-traumatic stress disorder (PTSD).  At the time, he didn’t realize he was self-medicating with alcohol, admittedly not the right decision.  He and a few battle buddies were at a club having a few drinks, he got tired and went to the car to sleep awhile.  He woke up in the car about 0500 hours the next morning.  There were no cars in the parking lot and no sign of his battle buddies.

   c.  He felt better so he decided to drive back to post.  About half way back he was pulled over, given sobriety and breathalyzer tests.  He passed the sobriety test, but not the breathalyzer.  He was charged with driving under the influence (DUI).  From there he had various court dates and classes to attend, which he did.  He paid all of his court fines and did what the court asked of him.  He got his license back, but he still attended Alcoholics Anonymous meetings regularly.  

   d.  Prior to being discharged, the Army wanted him to attend the Army Substance Abuse Program (ASAP).  He made an appointment and turned in his appointment slip to his command so they were well aware that he was on his way to recovery.  The day of his ASAP appointment, he was told he had to report to the motor pool and prepare to the go the field with the rest of the platoon.  After telling his platoon sergeant of the appointment, his platoon sergeant told him this was more important and he was not to attend the ASAP appointment.

   e.  Shortly after, his command was informed that he had failed the ASAP.  From there they informed him that they were working on his chapter paperwork.  This is after only one alcohol-related incident.  He began having flashbacks along with panic attacks from being under stress and fearing he would lose his job and be kicked out of the military.  The behavioral health facility felt it was best to check him into an inpatient behavioral health facility.  He was informed that he was to spend 30 days in the hospital.

   f.  About three days into his stay he received a call from his squad leader that his chapter packet went through and he was to be discharged in 14 days, while still in the hospital.  His command cleared him from post, turned in all of his equipment, removed the decals from his car, and shipped his household goods to his home of record.  

   g.  His commander came to the hospital and asked to sign him out to take care of some legal matters.  He was taken to his commander’s office and told to sign a memorandum stating that he was present and fit for duty.  He was then taken off hospitalization status and placed back on duty.  He was later taken to the processing center where he was told to sign his discharge papers and turn in his identification card.  After that, he was a civilian and he was dropped off at the hospital to complete the remainder of his time as an inpatient as a civilian, which TRICARE does not want to pay for.

   h.  He does not believe he was given due process for his chapter.  He was not able to do anything about the situation while he was hospitalized.  He was chaptered out of the Army while in a hospitalized status.  He believes if given the chance to recover from his mistake and soldier past it, he would have been a better, stronger Soldier.  He has not had one sip of alcohol since his DUI, and has obtained a job as an optician, licensed by the state of Texas.  He recovered on his own, but feels he would have made an even better recovery if the Army had given him a chance to rehabilitate while on active duty.  He wants to make a difference and serve his country again.
3.  He provides:

* fourteen DA Forms 4856 (Developmental Counseling Forms)
* DA Form 5790-R (Record Firing Scorecard – Scaled Target Alternate Course)
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2012000396, on 19 June 2012.

2.  He provides copies of fourteen DA Forms 4856, a DA Form 5790-R, and a DA Form 705 that were not previously considered.  Therefore, they are considered new evidence and warrant consideration by the Board.

3.  His military record shows he enlisted in the Regular Army on 11 July 2006.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  He was promoted to pay grade E-4 on 11 July 2008.  He served in Afghanistan from 30 June 2008 through 12 June 2009.  

4.  He provides copies of fourteen DA Forms 4856 showing he received the following counselings on:

* 8 May 2007 – welcome and initial counseling
* 29 November 2007 – monthly counseling, he was advised that his performance for that month had been pretty good, but there was room for improvement, his level of physical fitness was not what it should be
* 27 March 2008 – monthly counseling, he had performed well in most everything; however, he failed his physical training (PT) test
* 28 April 2008 – monthly counseling, he had passed a PT test
* 25 July 2008 – monthly counseling, his overall duty performance was satisfactory
* 23 August 2008 – monthly counseling, his overall duty performance for the month of August was outstanding, he was congratulated on getting promoted to pay grade E-4
* 25 September 2008 – monthly counseling, his overall duty performance for the month of September was satisfactory
* 30 October 2008 – monthly counseling

* 23 December 2008 – monthly counseling, his performance for the month of December was outstanding
* 25 January 2009 – monthly counseling, his military bearing was one of the best and it was an example to look up to amongst the Soldiers
* 23 March 2009 – monthly counseling, his performance for the month of March was outstanding
* 25 April 2009 – monthly counseling, his performance for the month of April was outstanding
* 25 May 2009 – monthly counseling, this month his performance was satisfactory
* 16 December 2009 – monthly counseling, his performance for the month of December had been exceptional

5.  He provides a DA Form 5790-R, dated 20 March 2009, which shows he was found qualified as an expert marksman.  He further provides a copy of a DA Form 705, dated 25 April 2009, which shows he passed the APFT.

6.  On 23 January 2010, he was convicted by civil authorities of DUI.  

7.  There is no evidence of record showing he was diagnosed with PTSD and was receiving treatment during his period of service.  There is also no evidence of record he was referred to the ASAP.  

8.  On 23 March 2010, the applicant’s unit commander notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulations 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct – commission of a serious offense.  The unit commander stated the applicant’s DUI conviction, and that it was a second alcohol-related incident in 2 years, as the basis for the recommendation.

9.  On 23 March 2010, after consulting with counsel, the applicant acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 18 March 2010, the separation authority approved his discharge and directed the issuance of a general discharge.  

11.  He was discharged in pay grade E-4 on 6 April 2010, under the provisions of Army Regulation 6345-200, paragraph 14-12c, for Misconduct (Serious Offense). His service was characterized as under honorable conditions (general).  He was issued a separation code of “JKQ” and an RE code of "3."  He was credited with completing 3 years, 8 months, and 25 days of net active service and no time lost.

12.  On 23 May 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  Chapter 14 the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  Paragraph 14-12c provides for the separation of Soldiers for the commission of a serious offense of misconduct from the harsher penalties that may be imposed under the Uniform Code of Military Justice.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

	c.  Paragraph 3-7a states 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 will be clearly inappropriate.

   d.  Paragraph 3-7b states 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.  

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs the eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

15.  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 that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct (serious offense).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a civil court of DUI in January 2010.  In March 2010, his unit commander initiated action to separate him under the provisions of paragraph 14-12c based on the DUI conviction and stated that it was a second alcohol-related incident in 2 years.  After consulting with counsel, the applicant acknowledged the proposed action, waived his rights, and elected not to submit a statement in his own behalf.

2.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged in pay grade E-4 on 6 April 2010.  It appears his overall length and quality of his service to include his combat tour in Afghanistan mitigated his general discharge and no reduction of rank at the time of discharge.  However, his misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.

3.  There is no evidence in the available record and he had provided none to show his assigned separation code of "JKQ" and RE code of "3" are in error or unjust.  Therefore, he has established no basis for changing his existing RE code.  

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

5.  The documents he provided were carefully considered; however, there is no evidence of record and he provided none to show he was suffering from PTSD at the time and it prevented his successful completion of his enlistment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X______  ___X_____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120000396, dated 19 June 2012.



      _______ _  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)                                         AR20120012685





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012685



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1