IN THE CASE OF:	  

		BOARD DATE:	 18 February 2014
 
		DOCKET NUMBER:  AR20130007375 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable and his reentry eligibility (RE) code as RE-1, and removal of the narrative reason for his separation.

2.  He states his records are in error due to the process used in his discharge.

3.  He provides:

* response to Army Discharge Review Board decision
* Army Discharge Review Board Case Report and Directive
* Clinical Contact Notes
* Psychosocial Assessment
* six DA Forms 2823 (Sworn Statement)
* Mental Health Discharge Summary
* DA Form 3349 (Physical Profile)
* Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, discharge proceedings
* DA Form 5006 (Authorization for Disclosure of Information)
* letter from Fort Drum Samaritan Behavioral Health Clinic
* seven DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 January 1997.

2.  On 30 January 2009, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to go at the prescribed time to his appointed place of duty and disobeying a lawful command from his superior commissioned officer.

3.  On 2 April 2009, the unit commander notified the applicant of the proposed recommendation to discharge him under honorable conditions (general) for commission of a serious offense under the provisions of Army Regulation 
635-200, paragraph 14-12c, for willfully disobeying a lawful command from a lieutenant colonel (LTC) on 7 and 31 January 2009, failing to go to formation and draw weapons for deployment on 7 January 2009, missing movement to Afghanistan, and leaving his appointed place of duty on 27 July 2009.  He was advised of his rights.

4.  On 2 April 2009, the applicant acknowledged notification of the separation action under Army Regulation 635-200, paragraph 14-12c, its potential effects, and the rights available to him.  He acknowledged he consulted with legal counsel and conditionally waived consideration of his case by an administrative separation board contingent upon receiving a character of service of no less favorable than general under honorable conditions.  The applicant indicated he submitted statement(s) in his own behalf.  Note:  Although the subject of the memorandum clearly references Army Regulation 635-200, paragraph 14-12c, paragraph 1 erroneously references Army Regulation 635-200, paragraph 5-8.

5.  On 23 July 2009, the applicant consulted with legal counsel and conditionally waived consideration of his case by an administrative separation board contingent upon receiving a character of service no less favorable than general under honorable conditions.  The applicant indicated he did not submit statement(s) in his own behalf.

6.  On 18 August 2009, the Commanding General, 10th Mountain Division (Light Infantry) and Fort Drum, notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The reasons for the proposed action were:  the applicant willfully disobeyed a lawful command from an LTC on 7 and 31 January 2009, he failed to go to formation and draw weapons for deployment on 7 January 2009, he missed movement to Afghanistan, and he left his appointed place of duty on 27 July 2009.  The Commanding General recommended characterization of his service as general under honorable conditions.  He was advised of his rights.

7.  On 20 August 2009, the applicant consulted with legal counsel and unconditionally requested to appear before an administrative separation board.

8.  On 3 September 2009, the applicant was notified to appear before an administrative separation board and he was advised of his rights.  On 28 September 2009, the administrative separation board convened.  The applicant appeared with counsel.  The board found that the applicant committed the alleged misconduct of disobeying a lawful command from an LTC by failing to go to formation and draw weapons for deployment as well as failing to remain as directed by Captain (CPT) B____.  The board recommended the applicant's separation from the service with the issuance of a general discharge under honorable conditions and suspension of his discharge for a period of 180 days.

9.  On 13 October 2009, the separation authority approved the recommendation of the administrative separation board with the exception of the 180-day suspension and directed the applicant's discharge under honorable conditions.

10.  On 20 October 2009, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  He completed 12 years, 8 months, and 27 days of active military service.

11.  His DD Form 214 shows in:

	a.  item 24 (Character of Service), the entry "UNDER HONORABLE CONDITIONS (GENERAL)";

	b.  item 25 (Separation Authority), the entry "AR 635-200, PARA 14-12C";

	c.  item 26 (Separation Code), the entry "JKQ";

	d.  item 27 (Reentry Code), the entry "3"; and

	e.  item 28 (Narrative Reason for Separation) the entry "MISCONDUCT (SERIOUS OFFENSE)."

12.  On 1 December 2010, the Army Discharge Review Board determined he was properly and equitably discharge and denied his request for a change in the character and/or reason of his discharge.

13.  He provided a supplemental letter in response to the Army Discharge Review Board decision wherein he stated:

	a.  All the facts were not considered during the discharge process.  He was going through a difficult divorce which affected his mental state of mind.

	b.  He didn't receive support from his command and his soon-to-be ex-wife continued contact with his squadron commander.  For example, his command staff released his medical information to her without his permission.  His mental health records indicate his symptoms were related to his divorce and chain-of-command stress.  His mental health at the time of deployment was extreme and affected his ability to make rational thoughts.

	c.  The charges brought against him are not valid and should be dismissed.  He was charged with disobeying a lawful command given by LTC G____ who was not even in the country at the time of the alleged incident.  He claims that LTC G____'s state of mind was not sound during this period of time and was also undergoing a discharge process due to failure of his mental health capabilities.

	d.  He was charged with failing to go to the appointed place during the deployment of his unit on 7 January 2009.  He did report to this deployment, which is supported in testimonies and many other documents in his file.  He attempted to discuss his situation with Master Sergeant (MSG) K____ and CPT B____, but he was ignored for over an hour.  He was admitted to the mental health ward because his mind went into crisis mode.  Also, his flight was cancelled due to the weather.

	e.  He was charged with disobeying an order given on 7 January 2009.  He believes that he was not given an order to remain in the staging area.  This belief is based on the testimony of MSG K____.

	f.  He was also charged with leaving an appointed place on 27 January 2009.  He believes this charge is without merit.  He claims he had just completed a 
24-hour shift/duty day and reported to the appointed place at the appointed time, but he was instructed to leave.  Sergeant S____'s statement verifies he was at the appointed place and was directed to leave.

	g.  He believes he received punishment twice for the same offenses based on the fact that he received an Article 15, dated 30 January 2009, and an Article 15, dated 11 April 2009.  Each of these NJP's includes the offenses presented during the discharge board.  He accepted the NJP's and completed the assigned punishments.  After completion of these punishments, he was then presented to the discharge board and released from military service.  He believes this is an injustice that needs to be corrected.  Several fellow Soldiers testified on his behalf and he was awarded an Army Good Conduct Medal which covers this period of time.

	h.  He believes he was lied to and manipulated by the command staff and the individuals who processed his discharge.  He provided several documents to support his position.  Some of the documents show an inconsistency regarding his discharge.  One document indicated chapter 5 and the next document indicated chapter 14 would be used.  His NCOER's, testimonies from fellow Soldiers, sworn statements, and the mental health staff verify that he is an outstanding Soldier.

	i.  He paid the penalties for any inappropriate actions, he was recognized for his good conduct, and he met the challenges presented to him.  He admitted he was going through a rough period with his divorce and the lack of support he received from the leadership within his unit and from post command staff.

14.  He also provided the following documents in support of his application:

	a.  Seven NCOER's covering periods from July 2001 through 31 March 2008 show he was consistently evaluated as "Fully Capable" with ratings of "Sucessful-2/Superior-2" (five reports), "Sucessful-2/Superior-3" (one report), and "Sucessful-1/Superior-2" (one report).

	b.  A Samaritan Medical Center, Fort Drum, Psychological Assessment, dated 17 June 2008, shows his symptoms were listed as agitation, helplessness/
hopelessness, aggression, depressed mood, anger, anxiety, relational problem, appetite change, marital problem, sleep problem, assaultive, excessive guilt, poor concentration, and weight gain/loss.  These symptoms are related to his divorce and chain of command – stress.

	c.  A Samaritan Medical Center, Fort Drum, Mental Health Discharge Summary shows he was admitted to the Samaritan Medical Center on 8 January 2009 and was discharged on 13 January 2009.  He was diagnosed as having recurrent, moderate, major depressive disorder without psychotic features (Axis I) and multiple stressors, including military as well as relationship with separated wife (Axis IV).

	d.  A Samaritan Medical Center, Fort Drum, Clinic Office Note, dated 15 January 2009, shows he was hospitalized for 5 days.  He was brought to the emergency room on the eve of his unit's deployment to Afghanistan.

	e.  A Connor Troop Medical Clinic, Fort Drum, memorandum, undated, subject:  Notification to Separate – Army Regulation 635-200, shows he was notified he was being considered for elimination from the Army under the provisions of Army Regulation 635-200, paragraph 5-17.  He acknowledged receipt of the notification with his signature on 24 February 2009.

	f.  A Samaritan Medical Center, Fort Drum, Clinical Contact Note, dated 1 April 2009, shows he was assessed as having an adjustment disorder with depressed mood.

	g.  A DA Form 3349, dated 30 April 2009, shows he was issued a temporary physical profile rating of 3 in the psychiatric factor for depression.

	h.  A Samaritan Medical Center, Fort Drum, letter, dated 30 April 2009, informed a local civilian law firm that the applicant had been in therapy since 28 January 2009, had attended 11 therapy sessions, and had a history of depression and anxiety (treated with medication).

15.  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 is 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	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.

	c.  Prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 provides a list of RE codes.

		(1)  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  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 unless a waiver is granted.

16.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation specifies that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes).

17.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  This regulation shows that SPD "JKQ" as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "misconduct – commission of a serious offense" and the authority for discharge under this SPD code is "Army Regulation 635-200, paragraph 14-12c."  The SPD/RE Code Cross Reference Table shows that RE-3 is the applicable RE code for individuals separated by reason of misconduct for commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service records show he received an Article 15 for failing to go at the prescribed time to his appointed place of duty and disobeying a lawful command from his superior commissioned officer.

2.  His administrative separation for this misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and characterized his service as under honorable conditions (general).  He has not presented sufficient evidence which warrants changing his general discharge to fully honorable.

4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on misconduct and there is no basis upon which this reason should be changed.  Therefore, there is no basis for changing his SPD or RE codes.

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 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)                                         AR20130007375



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007375



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1