IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20130000817 


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 an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* his acts of misconduct were directly associated with his readjustment related post-traumatic stress [disorder] (PTSD) due to the loss of his section members in Iraq
* he drank heavily in order to deal with the stress over his loss and survivor's guilt and other military-related problems
* since discharge, he has found help for his PTSD and has dedicated his life in support of our brothers in arms, past and present
* his dedication can be seen through his degrees and substance abuse counselor license
* he is working on his doctorate's degree to find the most functional ways to create positive integration for military members and families
* he is a veterans outreach coordinator and mental health and benefits director
* he serves on a city advisory council as well as being a full-time student
* he takes his commitment to the military seriously and believes an upgrade of his discharge would be more impactful in aiding him in creating positive outcomes for our heroes and families
* if he was given but one percent of confidence, he swears he would gain the other 99 percent and repay that trust through his continued commitment to our nation's most valuable asset, our fighting force 
3.  The applicant provides:

* 3 character letters
* 5 certificates of appreciation
* résumé
* letter from the Department of Veterans Affairs (VA), dated 12 December 2012
* 2 degree certificates
* 2 letters of recommendation
* 3 training certificates
* Substance Abuse Rehabilitation Counselor Certificate
* Academic Honors Society Certificate
* National Association of Social Workers Membership Certificate
* documentary website

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 March 2002.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).

2.  The applicant received imminent danger/hazardous duty pay for service in Iraq for the period 19 March 2003 through 16 April 2004.

3.  Records show the applicant accepted nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice, on the following occasions:

* on 16 December 2004, for failing to obey a lawful general regulation
* on 14 February 2005, for breaking restriction

4.  On 16 January 2005, the applicant was cited for:

* speeding and refusing to pull over while on post
* being unruly toward police officers
* refusing to take a breathalyzer
* driving under the influence

5.  On 20 January 2005, the applicant's on-post driving privileges were suspended for a 1-year period.  On 30 January 2005, a staff duty officer reported the applicant was seen driving on post while his driving privileges were suspended.
6.  Records also show he was frequently counseled by members of his chain of command for various infractions of disobeying lawful orders and breaking restriction.

7.  Police records show the applicant was apprehended for public intoxication on 19 February 2005.  He was processed and released to his unit and ordered to appear for arraignment on 22 February 2005.  He appeared for arraignment, pled not guilty, received a $500 bond, and was given a court date of 27 April 2005.  There is no further information on his court date.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 10 March 2005, shows:

* the applicant had no psychiatric disease or defect which warranted disposition through medical channels
* he met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3
* he was cleared for any administrative action deemed appropriate by his command

9.  A DD Form 458 (Charge Sheet), dated 15 March 2005, shows court-martial charges were preferred against the applicant for breaking restriction on or about 19 February 2005.

10.  A police report, dated 25 March 2005, shows the applicant was fined for the following citations in 2004:  false statement/reports, two instances of failure to obey traffic light, and loud/unnecessary noise.

11.  On 29 March 2005, the applicant's commander approved a bar to reenlistment.

12.  A DA Form 4856 (Developmental Counseling Form), dated 12 April 2005, shows the applicant was convicted by a summary court-martial of breaking restriction; however, the summary court-martial order is not filed in his Army Military Human Resource Record.

13.  On 12 April 2005, the applicant was notified of his immediate commander's intent to initiate separation action against him in accordance with paragraph
14-12b, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), for a pattern of misconduct.  The commander recommended the issuance of a general discharge.  The applicant acknowledged notification of the commander's intent to recommend him for separation.

14.  On 20 April 2005, he consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He also elected to submit statements on his own behalf and requested his service be characterized as honorable.

15.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct – and directed the characterization of his service as general under honorable conditions.  Accordingly, the applicant was discharged on 4 May 2005.

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged by reason of misconduct in accordance with paragraph 14-12b of Army Regulation 635-200 with a character of service of under honorable conditions.  This form further shows he completed 3 years, 1 month, and 29 days of creditable active service.

17.  On 2 February 2011, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

18.  The applicant provides a résumé, character letters, letters of recommendation, certificates of appreciation, training certificates, degree certificates, a Substance Abuse Rehabilitation Counselor Certificate, and an academic and affiliation certificate.  He also provides a letter from the VA which shows he has a 50-percent disability rating for PTSD.

19.  A review of the available medical records fails to show the applicant was diagnosed with PTSD while on active duty.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes 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 was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

   b.  Paragraph 3-7a provides that 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 would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general under honorable conditions discharge to an honorable discharge was carefully considered.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although he contends his misconduct was due to his alcohol consumption and PTSD over the loss of his fallen comrades, there is insufficient evidence of such a diagnosis while he was on active duty.  Further, there were many options available to assist him with his grief.

4.  Although the applicant has received numerous accolades, training, and education since his discharge, this does not mitigate his many instances of misconduct while he was on active duty.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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 for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20130000817



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130000817



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1