Applicant Name:  

Application Receipt Date: 2011/12/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The counsel on behalf of the applicant states, in effect, that in addition to requesting an upgrade, it extends to changing the reason to AR 635-200, Chapter 5-17 or 13, and for a personal appearance before the traveling Discharge Review Board.  The applicant’s ETS was 080107; however, it was extended due to the imposition of “Stop Loss,” while deployed from 2005 to 2006 January and from 2007 March to 2008 July.  The applicant’s separation was based on two separate Article 15s that were imposed on him within a five-month period and after his original ETS date of 7 January 2008.  Different branch of service and DoD have generally acknowledged that many of the combat veterans returning from OIF and OEF are not getting the mental health treatment they need during service and post discharge, and the applicant certainly falls within that category.  The applicant’s military service up to the end of his second deployment was exemplary.  He was awarded two ARCOMs, the CIB, and had been promoted to E-5 in about three and a half years.  Nevertheless, his medical records during his final deployment (and months after his contractual obligation date) show a diminished capacity of physical and psychological functioning.  The limited assistance the applicant obtained through medical channels diagnosed him with, at least, adjustment and substance abuse disorders.  The diagnoses and his two combat tours as an infantryman certainly explains, if not mitigate, the conduct which was the basis for the two FG Article 15s.  That is despite the fact that he had honorably completed his original four-year enlistment contract and ETS’d on the date of his adjusted ETS date (unit was in a post-deployment re-stabilization period when they returned in July 2008).  As with many military families, the applicant’s deployments cost him his marriage in 2009.  His characterization of service has significantly impacted his ability to obtain benefits through the Department of Veteran Affairs.  This is despite the fact that his service was characterized as general, under honorable conditions; he served two combat tours in Iraq (combined 27 months); and he served an additional 11 months of service in order to risk his life for his country.  The following specifically illustrates the inequitable nature of his discharge:  (1) He was denied benefits under the Post-9/11 GI Bill due to the fact that he did not get an honorable discharge, despite the fact that he had completed not only his contractual service obligation, but an additional period due to stop loss/stop movement orders; and (2) his divorce.  He is currently enrolled in a university, but is paying out of his pocket due to his “less than honorable discharge."  He is an academic junior with a projected graduation date of April 2013 and with a degree in Information Technologies.  Moreover, his company commander and his first sergeant (1SG) were relieved in Iraq after a command climate survey was conducted.  His 1SG was forced to retire after engaging in a sexual relationship with a subordinate.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 081105
Discharge Received: 			   Date: 081111   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: A Co, 1st Bn, 64th Armor Bn, 2nd Brigade, 3rd ID, Fort Stewart, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 081022, wrongful use of marijuana (080824-080923), reduced to E-4; forfeiture of $1,024 x 2 months; 45-day extra duty and restriction, (FG)

080613, sleeping on post as a sentinel (080526), reduced to E-4; forfeiture of $1,023 x 2 months (suspended); 45-day extra duty, (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 040108    Current ENL Term: 4 Years  ?????
Current ENL Service: 	04 Yrs, 10 Mos, 04 Days ?????
Total Service:  		04 Yrs, 10 Mos, 04 Days (includes stop loss extension)
Previous Discharges: 	None
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B (Infantryman)   GT: 112   EDU: 13 Years   Overseas: SWA   Combat: Iraq (050120-060103)
Decorations/Awards: ARCOM-2; AAM; NDSM; GWOTSM; ASR; MUC

V.  Post-Discharge Activity
City, State 
Post Service Accomplishments: Held two jobs; thereafter, has been attending a university in Savannah, GA.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 October 2008, 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—for wrongfully using marijuana (080824-080923) and sleeping on post as a sentinel in Iraq (080526), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On5 November 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 6 November 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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 absence 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.  

       c.  Response to Issues, Recommendation and Rationale:  
       After carefully examining the applicant’s record of service during the period of enlistment under review and the issue and documents submitted with the application, the analyst determined that the discharge was both proper and equitable.  
       
       The analyst determined that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and the misconduct diminished the quality of service below that meriting a fully honorable discharge.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       Furthermore, the analyst noted the applicant’s issue and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Although the applicant contends that his discharge was inequitable because of mitigating circumstances, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  
       
       Further, the analyst acknowledges the applicant's successful transition to civilian life and noted the behavioral health issues outlined in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that in October 2008, the applicant underwent a mental evaluation which indicates that he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  The analyst concluded that just because the applicant suffers from his medical issues does not mean he doesn't know the difference between right and wrong or that he did not have control over his behavior.  There are many Soldiers with similar conditions that complete their service successfully.
       
       The applicant also contends that he should have been medically discharged; however, the analyst determined that Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition like a personality or adjustment disorders solely to spare a Soldier who may have committed serious acts of misconduct.  His aforementioned contention included having the narrative reason for his discharge changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Misconduct)", and the separation code is "JKQ."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.
       
       The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice.
       
       The analyst also noted the applicant's issue about his desire to use the benefits of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       Additionally, the analyst noted the applicant's deployment service that is not annotated on his DD Form 214. However, correction to the DD Form 214 does not fall within the purview of this Board.  Therefore, the applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       Accordingly, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 
       
       
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 1 June 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]
Witnesses/Observers: None 

Exhibits Submitted: DD Form 293, dated 14 December 2011 with counsel statement and applicant's self-authored statement; medical records; 3 supporting statements; ETS Orders, dated 11 July 2008; 3 counseling statements, dated 26 May 2008; VA letter, dated 6 March 2009.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder

Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20120000080
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