IN THE CASE OF:	

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130012831 


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, in effect, an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states the under other than honorable conditions discharge should be corrected to reflect the issues that occurred as a direct result of his medical issues relative to and as a result of the medications and symptoms associated with his diagnosis of post-traumatic stress disorder (PTSD).  At the time of his misconduct he was heavily medicated on drugs that were used to treat his symptoms of PTSD and traumatic brain injury (TBI).  Had it not been for the side effects he experienced while on these medications, his judgment would not have been clouded or illogical.  He also states: 

	a.  He served honorably in a combat area in Iraq from May 2007 until June 2008 during the time of the "SURGE."  He was stationed with the 2nd Infantry Division, 151st Brigade, 38th Infantry Regiment (STRYKER unit) from Fort Lewis WA.  He saw action in Baghdad and the Dylan Province.  

	b.  Shortly after he arrived around 28 July 2007, he received injuries during a mission from a deep-buried improvised explosive device (IED).  Due to this injury, he had surgery for three hernias.  He also had a brain concussion at this time.  He was able to return to duty near the end of November 2007.  On numerous occasions after this, they encountered many roadside lED blasts, which have caused him to frequently suffer from severe headaches.  He also has lapses of memory at times that were caused by these injuries.  The worst problems he suffers today, however, are the terrible dreams, flashbacks, and nightmares.  Reliving the day he saw his buddies killed in action is almost more than his mind can process.  He is praying that with the proper help and the faith he has in God, that someday he will be able to overcome these horrible memories.

	c.  Before they returned to the states, he was diagnosed with PTSD and TBI injuries.  These injuries were confirmed in his medical records after he returned to Fort Lewis, WA.  He was never treated for these injuries at Fort Lewis because he was soon transferred to Fort Benning, GA where he was assigned to 3rd Brigade, 3rd Special Troops Battalion so that he would be closer to home.  Things went down as far as a plan for help and treatment for his PTSD and TBI.  He asked for help, but never received any for these problems.  Instead, he was given numerous medications to the point that he was highly sedated all the time. He is enclosing a list of the medications so the Board can understand why his thought process and ability to do his job was impaired.  All these medications did nothing more than serve as a band-aid to repress his PTSD.  In actuality it led to his addiction to the medications.  He was sent to drug rehabilitation and he was able to become drug-free.  However, when he asked for help with PTSD, the Army put him back on all the medications that had caused his problems.  This only caused him more problems.  He was desperately seeking help for his PTSD, but never received any.

	d.  At this time, his marriage had fallen apart as he was not capable of being the husband and father that he should have been.  It was during this time that he deeply regrets and acknowledges that he did some things that were wrong.  His actions during this time were not the values of honesty and integrity that he held high as a Soldier.  He asks for forgiveness for these wrongs, and the Board should know that he is hurt to this day for these actions.  He contends that this whole situation and other than honorable discharge was due to his medical condition at the time.  He was in need of proper treatment for PTSD.  It is his contention that if he had been medically sound at the time, these problems would not have occurred.  Without an upgrade in his discharge, which he believes is reasonable given his honorable service to his country, he is unable to get the treatment he deserves from the Department of Veterans Affairs (VA) and/or the Military.  He is a broken man today and he requests the Board review his full military record and give weight to the good that he did and change his character of service to honorable.  He has lost his marriage, his family, his military career, and future hope for a reasonable occupation. 

3.  The applicant provides:

* DD Form 214
* Letter from the Army Discharge Review Board (ADRB) to his Member of Congress
* Letter of recommendation
* Letter from the Brigade Surgeon
* Honorable Discharge Certificate
* Award certificates
* Character reference letter
* Post-discharge VA medical records

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, on 6 February 2006, in the rank of private/E-2, and he held military occupational specialty (MOS) 11B (Infantryman). He was assigned to the 1st Battalion, 38th Infantry.

2.  He served in Iraq from 6 June 2007 to 6 June 2008.  During this period, he was promoted to specialist/E-4 on 1 August 2007 and he reenlisted on 18 December 2007 for a station of choice (Fort Benning, GA). 

3.  He was awarded or authorized the Army Commendation Medal (2nd Award), National Defense Service Medal, Iraq Campaign Medal with campaign star, Army Service Ribbon, Overseas Service Ribbon, and Combat Infantryman Badge. 

4.  Upon reassignment to Fort Benning, GA, in November 2008, he was assigned to the Brigade Special Troops Battalion, 3rd Brigade Combat Team.

5.  On 21 April 2009, at a closed hearing, he declined trial by a court-martial and accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* wrongfully and willfully impersonating a noncommissioned officer of the Army by publicly wearing the uniform and insignia of a sergeant
* wrongfully and without authority wearing upon his uniform the Ranger Tab, Sapper Tab, and Airborne Wings 
* his punishment consisted of a reduction to the lowest enlisted grade, a forfeiture of pay for 2 months, and extra duty and restriction
* he elected not to appeal his punishment 

6.  On 22 June 2009, consistent with his pleas, he was convicted by a summary court-martial of:

* one specification of stealing an 8th Army Command Sergeant Major coin and a Joint Chief of Staff coin
* three specifications of wrongfully stealing a cell phone
* one specification of wrongfully wearing the Air Assault Badge, Pathfinder Badge, and Ranger Tab
* one specification of wrongfully impersonating a noncommissioned officer
* the court sentenced him to a forfeiture of pay and confinement for 30 days
the convening authority approved his sentence on 22 June 2009 

7.  On 10 June 2009, he underwent a mental status evaluation for administrative separation.  He verbalized his understanding of this evaluation.  He was found mentally responsible, able to distinguish right from wrong, and adhere to the right.  He was psychologically cleared for administrative actions deemed appropriate by his chain of command.  

8.  On 25 June 2009, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reasons are cited as the wearing of unauthorized rank, badges, and tabs on multiple occasions and stealing property on multiple occasions.  He recommended the issuance of an under other than honorable conditions discharge. 

9.  On 25 June 2009, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he 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 that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board.  He acknowledged he understood that:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation  
635-200, paragraph 14-12c, for misconduct.  The chain of command recommended approval of the discharge action. 


11.  On 10 July 2009, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense with an under other than honorable conditions characterization of service and directed the applicant be reduced to the lowest enlisted grade (if applicable).   

12.  On 22 July 2009, the applicant was accordingly discharged.  His DD Form 214 shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with an under other than honorable conditions characterization of service.  He completed
3 years, 5 months, and 17 days of net active service this period.  The DD Form 214 also shows in:

* item 26 (Separation Code) the entry – JKQ
* item 28 (Narrative Reason for Separation) the entry – Misconduct (Serious Offense)

13.  On 10 January 2011, the applicant petitioned the ADRB for an upgrade of his discharge and/or change in the reason for his discharge.  He contended that his discharge was the result of medical problems he suffered at the end of his service.  He was heavily medicated and that if he had been medically treated correctly the incidents that led to his discharge would not have occurred.  He suffered from TBI while in Iraq and was never treated for it.  He is unable to receive proper treatment without an upgrade to his discharge.   

14.  On 5 August 2011, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  As a result, the ADRB unanimously denied his petition for an upgrade of his discharge.

15.  He submitted:

	a.  A letter of recommendation, dated 21 January 2011, from his former commander (with B Company, 1st Battalion, 38th Infantry).  The former commander opined the applicant was tactically and technically proficient, and his demeanor and leadership facilitated a successful deployment to Iraq. 

	b.  A letter from the Brigade Surgeon listing the various medications the applicant was taking.  The surgeon mentions the applicant's drug abuse and that the applicant had told a number of medical providers he was getting some medications from his cousin. 
	c.  A character reference letter, dated 17 December 2010, from his uncle who opines the applicant was diagnosed with PTSD and TBI due to his injuries.  His medications did not resolve the issues and caused his wrongdoings. 

	d.  Post-service VA progress notes, medical documents, consults, and other related documents. 

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when 
it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was 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. 

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides 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 states the SPD code of JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct (serious offense).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed serious offenses, specifically wearing unauthorized rank, badges, and tabs on multiple occasions and stealing property on multiple occasions.  As such, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  Prior to discharge, he underwent a mental status evaluation and he verbalized his understanding of this evaluation.  He neither raised any behavioral health issues nor were any found.  He was cleared for administrative action deemed appropriate by his chain of command.  Furthermore, when his commander advised him of the initiation of separation action, he neither raised any behavioral health issues nor submitted a statement on his own behalf.  

3.  There is no evidence in his records that shows he was physically unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  The available evidence shows he was fully able to perform the duties of his grade and/or MOS and he was fully qualified for discharge.  

4.  Further, the reason for his discharge (misconduct – commission of a serious offense) was not related to any medical conditions (PTSD) he had been diagnosed with and there were no other compelling reasons for the separation authority to initiate disability processing.  In the absence of evidence to the contrary, it is presumed that the separation authority was aware of the requirements of Army Regulation 635-200 and acted accordingly.  The nature of the applicant's misconduct (impersonation and theft) had no relation to any medical condition/medications he now claims, and he presented no compelling evidence that other circumstances warranted disability processing over administrative separation.

5.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His actions at the time clearly brought discredit upon himself and the Army.  Based on his record of misconduct (one instance of NJP, and one instance of a court-martial conviction) his service was unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20130012831



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ABCMR Record of Proceedings (cont)                                         AR20130012831



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