IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130004199 


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:

* upgrade of his general discharge to honorable
* change of his reentry eligibility code (RE) to 1
* change of his separation program designator (SPD) code to MBK, completion of service

2.  The applicant states that based on his entire Army career and extenuating circumstances the characterization of service was incorrectly assigned.

3.  The applicant provides his:

* self-authored statement
* military career timeline
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* discharge packet with allied documents
* Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation initiated by the applicant
* Department of Veterans Affairs (VA) decision letter, dated 3 August 2012
* Driving Under the Influence(DUI)/Physical Control (PC) Under the Influence Assessment Report
* Enlisted Record Brief (ERB)
* Various awards, certificates, and badges


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 March 2001 and he held military occupational specialties (MOS) 56M (Chaplain Assistant) and 88M (Motor Transport Operator) during his period of service.  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

2.  The ERB he provided shows his last assignment was with the 657th Forward Support Company, 5th Battalion, 3rd Field Artillery Regiment, Joint Base Lewis-McChord (JBLM), WA.  His ERB also shows he served in Iraq from
18 September 2006 to 10 October 2007.

3.  On 20 June 2011, the applicant underwent a mental status evaluation based on a proposed separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c (Misconduct- Commission of a serious offense).  The examining medical official indicated that the applicant had no obvious cognitive impairments, his behavior was cooperative, his perceptions normal, he was occasionally impulsive, he was not dangerous, he could understand and participate in administrative proceedings, could perceive right and wrong, met medical retention standards, did not require a Medical Evaluation Board (MEB), and had an adjustment disorder with depressed mood.

4.  The medical official also indicated the applicant had been screened for and tested negative for post-traumatic stress disorder (PTSD) and mild traumatic brain injury (TBI).  The applicant was screened for substance use disorders and determined not to need referral to the Army Substance Abuse Program (ASAP).

5.  On 28 July 2011, his immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for assaulting his spouse on divers occasions and disobeying commissioned and noncommissionned officers.  His commander indicated that he intended to recommend a general, under honorable conditions characterization of service.  

6.  A memorandum subject:  Commander's Report - Proposed Separation under Army Regulation 635-200, chapter 14-12c, Commission of a Serious Offense, dated 22 August 2011, shows that the applicant accepted non-judicial punishment under the Uniform Code of Military Justice (UCMJ) on 19 March 2010, for violating a command-directed no-contact order with his wife.

7.  On 22 August 2011, the applicant acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures/rights available to him.

8.  On the same day, he consulted with legal counsel and he was advised of 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 that were available to him.  He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He requested counsel and a personal appearance before an administrative separation board.  However, he agreed to waive his request to an administrative separation board if he was granted an honorable characterization of service.

9.  On 22 August 2011, the brigade commander recommended approval with a general, under honorable conditions characterization of service.

10.  The applicant's Army Military Human Resource Record (AMHRR) shows that on 16 September 2011, his Senior Defense Counsel requested the commander, 17th Fires Brigade, disapprove the separation board's recommendation to end the applicant's service and issue him a general under honorable conditions discharge.  He stated that his previous request to delay the separation board proceeding in order to allow sufficient time for both counsel and respondent to prepare had been denied.  His counsel further indicated:

	a.  During preparation counsel learned that the applicant had made a complaint to his leadership earlier in the year that initiated an Army Regulation 15-6 investigation into an allegation that the applicant's first sergeant had solicited a sexual relationship with the applicant's wife.  Further, the applicant's complete personnel file was not available.

	b.  The Army Regulation 15-6 investigation and personnel file were provided upon arrival at the board hearing.  They were not provided sufficient time to review these records, incorporate them into any preparation, interview potential witnesses, or request further relevant documents.  Again, counsel requested a delay which was denied.

	c.  Because no reasonable delays were granted, they never had an opportunity to interview any potential witnesses.  He was given one hour to interview eight witnesses - including the applicant's spouse.  Counsel contended that this interview would have taken at least three hours but they were denied the opportunity to conduct the interview during the duty day.

	d.  During the proceedings, one witness stated that he had maintained a performance counseling folder on the applicant; however, this information was not provided for review.  Those records were important because they represented part of the applicant's performance.  Without these records the board made its decision based on incomplete records despite having knowledge that the records existed.

	e.  Trial counsel argued that the applicant's request for delay in the proceedings was continually denied because the applicant's expiration term of service (ETS) was in six days.  By making this argument it was important to consider:

* the applicant was counseled about the possibility of a separation board in May 2011
* the applicant was finally notified that a separation board was actually scheduled on 26 August 2011
* no explanation was given of the extreme delay in preparing for the board and the applicant was not afforded adequate time to prepare
* the unit's delay in executing the board meant more work in processing the board results, but might have granted the applicant sufficient time to prepare 

   f.  The applicant deserved a fair hearing but did not get one.  He had insufficient time to prepare and to present his evidence which may have swayed the board's decision. 

   g.  Army Regulation 635-200 prescribes that individuals will have an opportunity to have a "full and fair hearing" and to ensure this happens, "[r]equests for an additional delay, normally not to exceed 30 days" will be granted.  In this case, we asked first for 14 days, then 2 duty days, and finally 
one duty hour.  It was impossible to believe the applicant had time to prepare.

11.  On 19 September 2011, the trial counsel provided a rebuttal to the defense counsel's request for disapproval of the separation board's recommendation.  Trial counsel stated that the board based its recommendation on its finding that the applicant committed a serious offense within the meaning of Army Regulation 635-200, paragraph 14-12c.  The evidence considered by the board included the following:

	a.  On 22 October 2009, just one day before his spouse gave birth to their child, the applicant was arrested by the Puyallup Police Department.  An investigation determined that the applicant and his spouse were involved in a verbal altercation that turned physical when the applicant grabbed his spouse by the neck.

	b.  On 14 February 2010, Air Force Security Forces (military police) were called to the applicant's residence on McChord Air Base after a 911 hang up call.  The applicant's spouse alleged that after a verbal altercation the applicant threw a phone at her, grabbed her neck, and threw her on the bed.  

	c.  Later on the same day, the military police were again called to the residence following a 911 call in which the applicant's spouse alleged that the applicant put his hands around her neck.  The applicant admitted violating a No-Contact order imposed by his company commander.

   d.  On 6 June 2010, the military police were called to the site of an altercation involving the applicant and his spouse.  The applicant's spouse alleged that the applicant hit and choked her.
   
   e.  On 6 August 2010, the military police were called to the site of an altercation involving the applicant and his spouse.  The applicant's spouse alleged that the applicant choked her, stomped on her toe, and knocked out her nose ring.  The applicant was arrested.
   
   f.  On 1 September 2010, the applicant signed an order of removal, issued by the commander of the 62d Airlift Wing, removing the applicant and his spouse from family housing and barring them from McChord Air Base for three years.  The basis of this action was "four incidents of domestic violence."

	g.  On the same day, military police were again called to the residence when witnesses heard arguing and saw two people chasing each other through the window.  The applicant's spouse alleged the applicant choked her.

	h.  On 18 November 2010, the applicant's commander counseled him on his failure to pay financial support to his spouse.
	i.  On 26 January 2011, the applicant's commander counseled him on his pending bar to reenlistment.  The commander made clear the bar was not punitive, but was meant as a tool to help rehabilitate the applicant, and outlined a plan of action to help him overcome the bar.

	j.  On 23 February 2011, applicant was officially notified that a bar to reenlistment was imposed.

	k.  The applicant was arrested on 24 April 2011 by Pierce County Sherriff's office for Public Disturbance and Obstruction of a Public Official.

	l.  On 10 May 2011, the applicant was arrested for Criminal Trespassing and Assault in the Fourth Degree (Domestic Violence).  The applicant tried to push his way into a home in which his spouse was staying at the time.  When his spouse tried to push him out of the door the applicant bit her hand.

12.  Trial counsel addressed the Defense counsel's contention that he did not have enough time to prepare for the board.

	a.  Army Regulation 635-200, paragraph 2-10, requires 15 calendar days notice before a separation board.  This paragraph even vests in the board president the authority to curtail the 15-day requirement when necessary for "overriding reasons."

	b.  The applicant's commander initially put him on notice, through a counseling statement and elimination flag, of his pending separation in late April and early May 2010.

	c.  The applicant was officially notified on 28 July 2011 that separation proceedings had been initiated.

	d.  The board president first notified the applicant of the pending separation board on 26 August 2011.  The original date of the board was 12 September 2011, a period of 17 calendar days from the date of notification.  Pursuant to a defense delay request, the board president granted a 2-day delay until 
14 September 2011.  Pursuant to a Government request, the board president granted a 1-day delay to 15 September to allow both the Government and defense counsel to participate in a court-martial scheduled for 13 September that had the possibility of running into 14 September.  The end result was a notice period of 20 calendar days.

	e.  Defense counsel initially requested a delay until 26 September 2011 based on his pending 10-day paternity leave and 2-day training.  Defense counsel never made a showing to the board president that he could not have reassigned the case to a junior defense counsel.

	f.  The board president's notification memorandum, echoing the guidance in Army Regulation 635-200 and Army Regulation 15-6, stated that she would assist in providing any evidence, whether documentary or testimonial, requested by the defense in a timely manner.

	g.  At 1625 on 14 September 2011, the defense served on the Government a witness and evidence request listing 33 witnesses and documentary evidence the defense sought produced at the board the following day.  The Defense produced approximately 20 of the witnesses.  Of those not produced, six were pending current or imminent punitive action under the Uniform Code of Military Justice, and obtaining their testimony would likely have required a grant of immunity from the general court-martial convening authority, an action there simply was not enough time to execute.  

   h.  Of the 20 witnesses the defense counsel was provided a synopsis of expected testimony by which to allow the board president to assess the relevancy and necessity of their testimony for only eight witnesses.  Defense counsel was offered an opportunity to interview these eight witnesses but declined to do so, claiming he did not have enough time.
   
   i.  The government also provided the applicant's local personnel file, the aforementioned performance counseling folder, and the Army Regulation 15- 6 investigation.
   
   j.  Defense counsel cross examined two of the four witnesses and gave a closing argument in which he again contended that he had insufficient time to prepare.
   
13.  The evidence that the applicant committed a serious offense was overwhelming and the board president considered all delay requests and eventually granted a 3-day delay.  The applicant received a 20-day notification of his pending separation board.  The Government bent over backwards to accommodate defense counsel's lengthy last-minute requests for witnesses and evidence, and was able to produce a significant majority of the requested people and documents, only to have defense counsel make little to no use of them.

14. In sum, all relevant regulatory provisions were followed and the applicant was provided all relevant due process protections.  A three–member board found that he committed a serious offense and recommended that he be involuntarily discharged with a general discharge.  For all the reasons discussed, trial counsel requested the approving authority deny defense counsel's request.

15.  On 19 September 2011, the Office of the Staff Judge Advocate reviewed the separation action pertaining to the applicant and determined the action was legally sufficient.  Further, this official determined that any errors which did exist were harmless and did not have a material adverse effect on any individual's substantial rights.

16.  On 20 September 2011, the separation authority approved the board's findings and recommendations and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense, and that he be given a general discharge.

17.  On 23 September 2011, the applicant was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as "Under Honorable Conditions (General)"
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* an SPD code of "JKQ"
* an RE Code of "3"
* the narrative reason for separation as "Misconduct, (Serious Offense)"

18.  On  7 August 2012, Army Discharge Review Board denied the applicant's request for an upgrade of his general discharge to a fully honorable discharge.

19.  The applicant provides a self-authored statement with a chronological list of his achievements in which he contends that he was denied sufficient time to prepare for his separation board, numerous witnesses were denied the opportunity to testify, and his performance counseling and the Army Regulation 15-6 investigation were not considered.  He contended that during February 2011 a senior noncommissioned officer, who served as his First Sergeant at one time, communicated inappropriately with his spouse and later threatened him.  He did not pursue assistance through the Army Community Service, Family Support Services, or Community Counseling Centers because he felt his leadership failed him and he had lost trust and confidence in the Army system.  He further contends:

* that the events that led to his discharge were caused by the dysfunctional behavior of his spouse and the death of his infant child
* on 21 July 2011, he was seen by a counseling psychologist at the ASAP and was diagnosed with alcohol abuse and the recommended treatment was listed as "30-45 day outpatient services"
* the Assessment Report was not delivered until 4 August 2011 which gave him no opportunity to participate in treatment because the report came after he was notified of the intent to separate him
* The VA approved his disability claim based on adjustment disorder with depressed mood effective 24 September 2011; however, he was never treated for depression while on active duty
* he used poor judgment at the time of the incident that led to his separation
* he completed 11 years in the Army, one of which was in combat in Iraq where he earned the Combat Action Badge



20.  In addition he provided:

	a.  The Army Regulation 15-6 investigation report in which a senior noncommissioned officer in the applicant's chain of command was found to have had an inappropriate relationship with the applicant's spouse and to have communicated a threat toward the applicant during the period January - March 2011.

	b.  A DA Form 4465 (Patient Intake/Screening Record), dated 21 July 2011, which diagnosed the applicant with alcohol abuse as the result of an investigation/apprehension and recommending his enrollment in the Community Counseling Center.

	c.  A Washington State DUI/PC Assessment Report, dated 21 July 2011, issued by the ASAP, JBLM, which recommended a 30-45 day outpatient service for treatment.  

	d.  His VA benefits determination letter, dated 3 August 2012, which awarded him a 30-percent disability rating for his service-connected adjustment disorder with depressed mood with alcohol abuse.

	e.  Various awards and training certificates which include the award of the Combat Action Badge.

21.  Army Regulation 635-200 states in:

	a.  Parargraph 2-10a that a Soldier under military control will be notified in writing of the convening date of the board at least 15 days before the hearing. This will allow the Soldier and the appointed counsel time to prepare the case.

	b.  Pargrapgh 2-10c(2) that requests for an additional delay, normally not to exceed 30 days after initial notice, will be granted if the convening authority or president of the board believes such delay is warranted to ensure that the respondent receives a full and fair hearing. 

	c.  Paragraph 14-2 that action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record).  

	d.  Paragraph 14-3 that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	e.  Paragraph 14-12 that Soldiers are subject to action per this section for the commission of a serious offense.  A separation for the commission of a serious military or civil offense is warranted if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

22.  Army Regulation 635-200 further states in paragraph 3-7a 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.

23.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of JKQ was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for a pattern of misconduct.

24.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that an RE code of 3 was the proper code to assign to members separated with an SPD code of JKQ.

25.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

26.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request to upgrade his discharge.

2.  The applicant and his counsel contend that the applicant was denied adequate time to prepare for his separation board proceedings which led to an incorrect decision by the separation board based on an incomplete record of events.

3.  The evidence shows that his commander notified the applicant on 28 July 2011 of his intent to separate the applicant under the provision of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense and the applicant acknowledged receipt on 22 August 2011.  He was notified by the board president on 26 August 2011 that his separation hearing would be held on 12 September 2011.  Subsequently, the applicant's defense counsel was granted a delay until 15 September 2011 which exceeds the 15 days required by regulation.  Further, it appears that trial counsel made every attempt to comply with and provide the applicant's defense counsel with all requested evidence and relevant witness testimony.  Given the degree of the applicant's misconduct it is doubtful that had his defense counsel been afforded additional time to prepare that the separation board would return a more favorable decision.

4.  The fact that he suffered from depression due to the death of his infant child and the dissolution of his marriage, due in part to inappropriate contact between his spouse and a member of his chain of command, are not in question.  However, these hardships do not negate his repeated acts of misconduct which included several incidents of domestic disturbance/abuse, violating a no-contact order, and confinement by civilian authorities on at least two occasions for grabbing his pregnant spouse around the neck and criminal trespassing/domestic violence (biting his spouse).

5.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of a serious offense.  The evidence also shows the applicant was assigned the appropriate SPD code of JKQ and RE code of 3 at the time of his discharge.

6.  Based on the reason for his discharge, he is not entitled to either a different SPD code or an upgraded RE code.

7.  The applicant was properly and equitably discharged in accordance with the applicable regulation, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

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)                                         AR20130004199





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ABCMR Record of Proceedings (cont)                                         AR20130004199



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