IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130009879 


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 rank/grade as staff sergeant 
(SSG)/E-6.

2.  The applicant states he was discharged in accordance with (IAW) Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c (Misconduct-Commission of a Serious Offense).  He received an under other than honorable conditions characterization of service and a reduction in rank/grade to private (PVT)/E-1.  However, the Army Discharge Review Board (ADRB) upgraded his characterization of service to under honorable conditions (general); therefore, as a result of his upgrade, his reduction in rank/grade to PVT/E-1 is erroneous.

3.  The applicant provides a DA Form 4187 (Personnel Action), dated 20 April 2012 and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 January 2001 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was sergeant first class (SFC)/E-7.

2.  His record contains a document entitled "Columbus Police Department Arrest Report" which shows he was arrested on 23 September 2011 for running a red 

light and driving under the influence (DUI) and was issued a court date of 
24 September 2011.  The arrest report further stated:

"[The applicant] was… operating a red Ford Explorer on Veterans Parkway and 4th street and was observed disregarding the red light and was subsequently stopped.  The [applicant] had the odor of an unknown alcoholic beverage about his person and stated he had "too much" to drink.  [the] field sobriety  [test] showed multiple indications of impairment as the [applicant] could not finish [the] test… [the test]… was stopped for fear he may fall.  A field [alcohol] sensor revealed the presence of alcohol and the [applicant] was arrested[,] read implied consent[,] and transported to the county jail.  Once at the county jail, [a blood alcohol content (BAC) test was administered.  The results show he had a BAC of .178.]

3.  His record contains a referred DA Form 2166-6 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 20 February 2011 through 
30 September 2011.  This report was referred because he was a dropped from the Senior Leaders course for disciplinary reasons.  

4.  His record shows he was promoted to SFC/E-7 on 1 October 2011; however, his chain of command requested he be removed from the promotion list.

5.  His record contains an Incident/Investigation Report dated 8 December 2011 which shows, on 8 December 2011, at 2256 hours, a Police Officer was dispatched to assist a Border Patrol Agent on a trespassing occurrence.  On arrival, the Border Patrol Agent advised the Police Officer that the applicant's vehicle had entered private government property without permission.  The Border Patrol Agent stated that the property was not open to public access.  The Border Patrol Agent stated that she activated the emergency lights and noticed that the applicant's vehicle was not stopping.  The vehicle finally stopped, at which time the Border Patrol Agent spoke to the applicant (driver) and asked him what his destination was.  The Border Patrol Agent noticed a strong odor of alcohol coming from within the vehicle and noticed an open container of alcohol inside.  The Border Patrol Agent stated that the applicant did not answer any of her questions; therefore, she asked the applicant to exit the vehicle and proceeded to call the Police Department.  

	a.  The Police Officer met with the applicant who was sitting on the floor.  The Police Officer asked the applicant to stand up and walk toward his vehicle.  The Police Officer noticed that the applicant was very slow in getting up and had an unsteady walk and balance.  The applicant, upon being asked, informed the Police Officer he was coming from downtown.  The Police Officer noticed the applicant had very red bloodshot watery eyes, a slur in his speech, droopy eye lids, slowed reflexes and responses, and a very strong odor of an unknown alcoholic beverage emanating from his person and breath.  The Police Officer asked the applicant how much he had to drink.  The applicant responded that he "didn't have too much" and then corrected himself and stated, "No, my lawyer told me to say none, so I haven't had anything to drink."  

	b.  After conducting a field sobriety test the Police Officer determined that the applicant was intoxicated and placed him under arrest, for driving while intoxicated.  The Police Officer inventoried the applicant's vehicle.  The Police Officer found a 750 milliliter (ml) bottle of Jim Beam Whiskey on the front passenger floor board, a 750 ml bottle of Makers Mark Whisky on the front passenger seat (both bottles were open and still had contents inside), and a 750 ml of Gentleman Jack with the contents nearly empty.  

	c.  The Police Officer transported the applicant to the Central Regional Command, where the applicant provided a specimen of his breath.  Two specimens were taken and the results showed that the applicant had BAC of .205 and .190.  After the BAC test was completed the applicant was booked at the police department for driving while intoxicated with a BAC of .15.

6.  His record contains a DA Form 4856 (Developmental Counseling Form), dated 9 December 2011, showing his first sergeant (1SG) counseled him for an offpost driving while intoxicated (DWI) arrest on 8 December 2011.  His 1SG stated the applicant had been arrested by the El Paso Police Department for suspicion of a DWI with a reported BAC of .15.  He informed the applicant that this behavior could not be tolerated within the NCO Corps.  The 1SG stated this was a violation of Article 92-Failure to obey order or regulation and Fort Bliss Commanding General's Command Policy Letter #2, since the applicant was an Army Substance Abuse Program (ASAP) graduate when he was arrested for DWI in Columbus, GA on 23 September 2011.  The applicant was unavailable to sign this counseling form because he went absent without leave (AWOL) on 10 December 2011.

7.  His record contains two DA Forms 4187 showing the applicant was AWOL on 10 December 2011 to 11 December 2011 (1 day).

8.  His record contains a DA Form 3822 (Report of Mental Status Evaluation), dated 20 December 2011, which shows he had no obvious cognitive impairments, his behavior was cooperative, his perceptions were normal, he was frequently impulsive, and he had suicidal intent.  He was diagnosed with an adjustment disorder with anxiety and depressed mood and tested positive for post traumatic stress disorder (PTSD).  Additionally, the examining official indicated he could understand the difference between right and wrong and could understand and participate in administrative proceedings.  He was cleared for administrative separation IAW Army Regulation 635-200, chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure).  

9.  His record contains a DD Form 2807-1 (Report of Medical History), dated 
20 December 2011, wherein the applicant indicated that he had been or was currently suffering from a concussion (resolved-no loss of consciousness) in March 2007, dizziness and vomiting from an outgoing mortar round - head 2 feet from barrel, (resolved-no loss of consciousness) in February 2010, sleep issues, and suicidal ideation.

10.  His record contains a DD Form 2808, dated 20 Decembers 2011, which shows he received a medical examination and received all 1 markings in the physical profile section.  Additionally, the examining physician determined he was qualified for military service and/or separation.

11.  On 25 January 2012, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for Commission of a Serious Offense. The reasons for the proposed action were that the applicant was arrested for DWI and he was AWOL from 10 December 2011 to 11 December 2011.  His commander indicated that he intended to recommend an under other than honorable conditions characterization of service.  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.

12.  On 27 January 2012, 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 IAW chapter 9 of Army Regulation 635-200, and indicated that he would submit statements on his own behalf.

13.  His record contains a memorandum defense counsel sent to the applicant's immediate commander, dated 27 January 2012, wherein counsel stated:

	a.  In the chapter packet [DA Form 3822, dated 20 December 2011, the examining official,] Dr. PF commented that the service member meets psychiatric criteria for separation in accordance with chapter 9 of Army Regulation 635-200. Dr. PF selected clearance for administrative separation IAW Army Regulation 635-200, chapter 9.  In his diagnosis, he states that the applicant is suffering from adjustment disorder with anxiety and depressed mood.  Furthermore, the chapter paperwork dated 20 December 2011 references the type of physical examination to be conducted as a chapter 9.

	b.  The command is currently trying to chapter this Soldier under paragraph 14-12c and is recommending the Soldier receive an Other than Honorable Conditions Discharge Certificate.  

	c.  However, it may be the case that the misconduct can be attributed to the Soldier's alcohol issues and mental health issues.  If that is the case, then the Soldier should receive a general discharge under chapter 9.  The Command should consider discussing this issue with the behavioral health experts.  The applicant is obviously dealing with some severe emotional issues, and the medical profession agrees.

	d.  If the applicant is given a general discharge this will have a substantial impact on the rest of his life.  This Soldier has mental issues that need to be dealt with. A chapter 9 and a general discharge will ensure the Soldier receives the help he needs to continue living with his current mental condition.

14.  On 27 January 2012, his immediate commander formally initiated separation action against him under the provisions of Army Regulation 635-200, chapter 
14, paragraph 14-12c.

15.  On 27 January 2012, the Brigade Judge Advocate thoroughly reviewed the administrative separation under the provisions of Army Regulation 635-200, chapter 14-12c, and determined the separation packet was legally sufficient.  

16.  His record contains a document, dated 31 January 2012, showing he had been admitted to the hospital (University Behavioral Health) on 10 December 2011 and was discharged on 9 February 2012. 

17.  On 14 February 2012, the intermediate commanders in the applicant's chain of command recommended approval with an under other than honorable conditions characterization of service.

18.  On 16 February 2012, the Division commander/separation authority directed that the separation action be referred to a standing administrative separation board, and stated that the board would determine whether the applicant should be discharged and recommend the appropriate characterization of service.
19.  His record contains a DA Form 3822, dated 5 March 2012, which shows he received a mental status evaluation upon his hospital discharge.  The evaluation shows that further evaluation was needed to determine the applicant's fitness for duty.  The examining medical official indicated that he had no obvious cognitive impairments, his behavior was cooperative, his perceptions were normal, he was occasionally impulsive, and he had suicidal thoughts.  This form indicated that he required further examination or testing to finalize a diagnosis and recommendations.  The applicant was diagnosed with Major Depressive Disorder and alcohol abuse.  Additionally, he tested positive for post-traumatic stress disorder (PTSD); however, further testing was necessary to rule out PTSD.

20.  His record contains a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and an attached worksheet, dated 6 April 2012, which show the board decided:

	a.  After carefully considering and weighing all the evidence, the board found that the applicant was driving while intoxicated and was AWOL from 
10 December 2011 to 11 December 2011.  Therefore, the basis for elimination under Army Regulation 635-200, chapter 14 was substantiated.

	b.  Based upon the finding of facts, the board recommended the applicant be separated from military service and that his discharge be characterized as under other than honorable conditions.

21.  His record contains a DA Form 4187 which shows he was administratively reduced in rank/grade to PVT/E-1 IAW Army Regulation 635-200, paragraph 14-4(b) and paragraph 10-15(a) because he was receiving an under other than honorable conditions discharge.  

22.  On 27 April 2012, he was discharged IAW Army Regulation 635-200, paragraph 14-12c and received an under other than honorable conditions characterization of service.  HIs DD Form 214 shows he served in:

* Iraq from 20 October 2002 to 18 August 2003
* Iraq from 22 January 2005 to 10 January 2005
* Iraq from 11 May 2007 to 7 July 2008
* Afghanistan from 19 August 2009 to 26 March 2010

23.  The applicant applied to the ADRB and requested an upgrade of his discharge.  On 17 October 2012, the ADRB determined that the characterization of service was too harsh, and as a result it is inequitable.  The ADRB further determined that the overall length and quality of the applicant's service, to include his combat service, mitigated the discrediting entries in his service record.  Accordingly, the ADRB voted to grant relief in the form of an upgrade of his characterization of service to under honorable conditions (general).  However, the board determined that the reason for discharge was proper and equitable and voted not to change it and that there would be no grade restoration.

24.  When an ADRB panel upgrades an under other than honorable conditions discharge to general under honorable conditions, an honorable discharge, or an uncharacterized discharge, it also must make a determination if the sole reason for reduction to grade E-1 was the administrative requirement to reduce the individual contained in the regulatory authority for issuance of such a discharge. If the determination is affirmative, the automatic restoration will take place as an issue of equity unless a board member objects.  If a board member raises the issue to not restore the grade, the panel will vote whether to restore the applicant's grade.  The general criteria to be used by the panel is that if an applicant held a grade satisfactorily on the day prior to the date the discharge was approved, he/she will be restored to that grade.  However, if the panel determines that an applicant was reduced subsequent to approval of the under other than honorable conditions discharge (separate court-martial, Article 15, denial of Article 15 appeal or other administrative action) the last imposed grade will be the restored grade.  This policy will apply only to those discharges awarded under Army Regulation 635-200, chapter 10, 14, or 15, or predecessor regulations.  It does not apply to discharges awarded as a result of a court -martial sentence.

25.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-15(a) states that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.  Further, board action is not required for this reduction.

26.  Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  It states in: 

	a.  Paragraph 14-3 that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

	b.  Paragraph 14-4 states that the separation authority is authorized to order discharge or direct retention in military service when disposition of a Soldier has been made by a domestic court of the United States or its territorial possessions. Upon determination that a Soldier is to be separated with a discharge under other than honorable conditions, the separation authority will direct reduction to the lowest enlisted grade by the reduction authority.  

	c.  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.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct.  The separation reason in all separations authorized by this paragraph will be "misconduct-abuse of illegal drugs."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged IAW Army Regulation 635-200, paragraph 14-12c and issued an under other than honorable conditions characterization of service.  IAW with Army regulations he was reduced to the rank/grade of PVT/E-1 because he received an under other than honorable conditions discharge.

2.  He later applied to the ADRB and requested an upgrade of his discharge.  The ADRB decided to upgrade his characterization of service to under honorable conditions (general) but not to change his narrative reason or authority for discharge.  His discharge was upgraded as a matter of equity because the ADRB looked at his overall record of service and made a decision to upgrade his characterization of service.  This decision does not imply that the separation authority made an incorrect decision, an administrative error, or failed to comply with applicable laws and regulations.  This decision was based entirely on equity. Additionally, the ADRB felt the reason for discharge was proper and equitable.

3.  However, the ADRB affirmatively determined that grade restoration was not appropriate.  

4.  His prior service has been considered and addressed in the form of an upgrade in the characterization of his service to general.  However, this does not erase the fact that he went AWOL or that he was arrested twice for drinking and driving or that the second arrest occurred after he had completed ASAP.  Additionally, it appears after his first DUI, which he received while at the Senior Leaders Course, he was dropped from this course for disciplinary reasons, and subsequently received a referred NCOER which resulted in his removal from the SFC promotion list.  


5.  Based on the foregoing, there is insufficient evidence or argument to justify granting the requested relief.  

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)                                         AR20130009879





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ABCMR Record of Proceedings (cont)                                         AR20130009879



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