IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140003284 


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:

	a.  The reason for his discharge be changed and the characterization be upgraded to honorable.

	b.  The recoupment of his tuition assistance (TA) be waived.

2.  The applicant states:

	a.  An alleged domestic event (not with his wife) was pending in local courts at the time of his discharge and has since been dropped since the complainant did not appear in court.  The domestic event was not a subject of discussion during the separation board proceeding or memorandum of notification but was on the final summary of proceeding presented by the separation board to the separating authority.  This was an error and injustice and justifies a fully honorable discharge.

	b.  He was unfairly denied the ability to present evidence from Specialist (SPC) K to speak about racial discrimination and marginalization of certain minority groups attesting to the harsh working conditions in which all of the allegations occurred.  Denial to present evidence that was consistent with his case for no apparent reason proved to be a major blow to his defense and his getting a fair determination.

	c.  Post-traumatic stress disorder (PTSD) was the reason for his discharge.  He has filed for combat related injury with the Department of Veterans Affairs (VA).  He had successfully completed over 10 behavioral counseling sessions while still on active duty (as shown by letters from the VA showing that calculation of his compensation benefits is still in progress).

	d.  He is required to pay a $1,800.00 debt incurred from failing three classes and using TA, when he was ordered by his chain of command to go support the Soldiers of the 1st Brigade Combat Team (BCT), Fort Campbell, KY in their training at Fort Carson, CO for their deployment to Afghanistan in March 2012.  His request for a waiver as a procedural requirement for TA was denied for no apparent reason by his battalion commander, Colonel DSP, 526th Base Support Battalion, 2nd BCT, Fort Campbell, KY.

3.  The applicant provides: 

* his marriage certificate
* Educational Assessment Unit (EAU) Recoupment Report
* two emails, dated 19 September and 2 October 2012, from Sergeant First Class C, assistant inspector general (AIG)
* a letter, dated 20 March 2013, from his defense counsel to the Commander, Fort Campbell, KY
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 April 2013
* a letter, dated 6 May 2013, from the VA, Nashville, TN
* a letter, dated 27 January 2014, from the Army Discharge Review Board (ADRB)
* a letter, dated 10 February 2014, from Army Review Boards Agency (ARBA)
* a letter, dated 10 February 2014, from CBE Group, Cedar Falls, IA

CONSIDERATION OF EVIDENCE:

1.  On 3 March 2009, he enlisted in the Regular Army for 4 years and 26 weeks.  He completed basic combat and advanced individual training and was awarded military occupational specialty 92W (Water Treatment Specialist).

2.  He served in Afghanistan from 30 May 2010 to 17 April 2011.  He was awarded the Army Achievement Medal for exceptionally meritorious achievement while serving as a company mail orderly from 22 - 24 December 2010.

3.  On 26 September 2011, he received nonjudicial punishment (NJP) for being disrespectful in language towards three noncommissioned officers (NCO) and failing to obey a lawful order from an NCO.

4.  He received 11 formal counseling sessions from 9 August 2011 to 30 October 2012 concerning failure to following instructions, disrespect toward NCOs, failure to be at his appointed place of duty, failure to maintain standards (shaving), failure to keep his chain of command informed concerning his college classes, and disobeying a lawful order.  In each case he was advised that continued misconduct could be cause for action to be taken to involuntarily separate him from the Army.

5.  On 6 July 2012, he pled guilty and was found guilty of speeding (82 miles per hour (mph) in a 45 mph zone) and reckless driving.

6.  On 16 November 2012, his commander notified him that action was being initiated to discharge him for the commission of a serious offense under the provisions of paragraph 14c of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with an under other than honorable conditions character of service.  The reasons for the proposed action was his: 

* wrongfully transporting a concealed handgun within the limits of Fort Campbell on 6 July 2012 
* recklessly driving a personally-owned vehicle 37 miles per hour over the posted speed limit
* disobeying a lawful order from an NCO on three occasions
* being disrespectful in language toward an NCO
* being disrespectful in language toward three NCOs
* being derelict in the performance of his duties on divers occasions
* failing to go to his appointed place of duty on two occasions

7.  His commander was recommending he be separated with a discharge under other than honorable conditions.  He was advised of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative board
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge
8.  On 28 November 2012, he submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for the commission of a serious offense.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issue to him.  He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He did not submit statements in his own behalf.  He requested to have his case heard by an administrative separation board.

9.  He received 12 formal counseling sessions from 29 November 2012 to 
5 February 2013 for disobeying and lying to an NCO, failing to be at his appointed place of duty, disobeying a lawful order, failing to report on two occasions, failing to obey administrative orders on two occasions, failing to be properly released on two occasions, lying to an NCO on two occasions, failing to follow instructions, failing to be in the proper uniform, insubordinate conduct toward an NCO, and failing to obey an order or regulation.

10.  On 22 February 2013, the applicant's defense counsel submitted a memorandum to the general court-martial convening authority (GCMCA) requesting that because witnesses and documents were provided late to the applicant, the witnesses should be precluded from testifying and all documents provided for the first time to the applicant on 21 February 2013 should not be considered.

11.  On 22 February 2013, the applicant and his counsel appeared before an administrative separation board.  The board found the applicant should be separated from the U.S. Army under other than honorable conditions.  The board members felt the evidence provided to them by the Government fully supported that the applicant should be separated for patterns of misconduct.  He was counseled repeatedly for failing to report, disrespect, and disobeying a senior NCO.  Additionally, he was arrested for an alleged domestic dispute against an alleged girlfriend.  At no time did the applicant provide evidence that he was in a racist or harsh unit environment.  He provided this claim only in a non-sworn statement.  Without witnesses to confirm or dispute such facts (defense moved to excuse all witnesses due to failure of Government to provide timely notification) the board could not fully consider this as a factor that would cause him to have patterns of misconduct.  He continually failed to perform and conduct himself in the very basic functions of a Soldier.

12.  On 8 March 2013, the board president notified the applicant that he would reconvene the board to correct a procedural error.  Additional evidence against him was later introduced that had not been in his initial notification of intent to separate.  Without re-notification of the additional misconduct allegations, they are only to be used when considering the type of discharge, if any, and not to be used when considering the issue of separation or retention.  

13.  On 15 March 2013, the president reconvened the applicant's administrative separation board to address a procedural error.  

	a.  The recorder asked the board to reconsider only alleged misconduct that the applicant was notified of when his separation action was initiated.  The recorder also asked that all misconduct that did not warrant separation under commission of a serious offense be disregarded as well.

	b.  Counsel for the applicant insisted that the changes to the allegations of misconduct were more than just a procedural difference.  He stated that the allegation of domestic assault that the board had previously considered had since been dismissed by civilian authorities.  He asked the board that if separation was recommended, that they recommend the applicant receive a discharge no worse than general, under honorable conditions.

	c.  The board's modified findings showed that a preponderance of the evidence did support the allegation that the applicant:

* drove recklessly on 6 July 2012
* unlawfully transported a loaded firearm on 6 July 2012
* disobeyed a superior NCO on 9 August 2011 and on 13 and 
27 September 2012 

	d.  The board recommended he be separated from the service because of his misconduct and should receive an under other than honorable conditions discharge.

14.  In a memorandum, dated 20 March 2013, the applicant's defense counsel requested the GCMCA issue the applicant an honorable discharge.

15.  On 28 March 2013, the Staff Judge Advocate (SJA), Headquarters, Fort Campbell, KY recommended the separation authority approve the findings of the administrative separation board and separate the applicant with an under other than honorable conditions discharge.  The applicant's defense counsel submitted written objections to the board proceedings.  

	a.  The applicant claimed he was unfairly denied the ability to call another Soldier, SPC K, as a witness at his hearing.  However, he failed to provide notice of this witness prior to the proceeding and the board president consequently declined to hear from the witness.  SPC K also faced an administrative separation board, which had recommended that he also be separated with an under other than honorable conditions characterization of service.  Under the circumstances and after considering the entire record, the SJA found that there was no basis for determining that the decision not to allow the testimony of SPC K constituted material error to the prejudice of the applicant.

	b.  The applicant claimed it was improper for the board to re-open the proceedings to correct the record and remove reference to a finding regarding misconduct that was not contained in the notification memorandum.  The SJA found this did not constitute material error to the prejudice of the applicant, as it in fact operated to the benefit of the respondent.  A review of the entire record revealed there was sufficient evidence of other misconduct to support the board's findings and recommendations.

16.  On 28 March 2013, the appropriate authority reviewed the administrative separation proceedings under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense, approved the findings and recommendation of the administrative separation board, and directed the applicant be discharged with a characterization of under other than honorable conditions. 

17.  On 19 April 2013, he was discharged by reason of misconduct for commission of a serious offense.  He completed 4 years, 1 month, and 17 days of active service that was characterized as under other than honorable conditions.

18.  His service medical records were not available for review.

19.  The letter, dated 6 May 2013, from the VA informs him they had received his application for benefits.  It does not provide any information concerning any medical conditions he may have.

20.  On 27 January 2014, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade.  The ADRB determined the applicant's discharge was too harsh based on the overall length of his service, and as a result it was inequitable.  Accordingly, the ADRB granted partial relief by upgrading his discharge to general, under honorable conditions.  The ADRB further determined the reason for discharge was both proper and equitable and voted not to change it.

21.  The EAU Recoupment Report he provided shows a failing grade and reason for recoupment as "Fail" for three classes.  The amounts shown are $435.75, $498.75, and $645.75.

22.  He provided an email, dated 2 October 2012, from an AIG concerning his TA issue.  The AIG contacted First Lieutenant (1LT) C, who stated the applicant did not come forward prior to the field training to let the chain of command know there was a conflict with his college classes until after the fact.  The form was not submitted until over 3 months after returning from Colorado.  Throughout the process he did not let the chain of command know of any issues that were taking place.  1LT C stated "the unit made coordinations [sic] for other Soldiers who came forward with school/training/appointment conflicts."  The applicant would have been (treated) no differently if the chain of command had been kept informed. Because of the lateness of the form being submitted to the chain of command, Major MP, acting Battalion Commander, with the support of the 1LT and First Sergeant G, did not approve the TA request.  The AIG stated this was within the bounds of the chain of command and they did not have to approve the applicant's request.

23.  A letter, dated 10 February 2014, from CBE Group, Cedar Falls, IA shows his current debt balance as $1,895.16 (includes $444.57 in fees and $3.71 interest).

24.  Army Regulation 621-5 (Army Continuing Education System), chapter 5 (Tuition Assistance/Financial Assistance) provides for voluntary off-duty education programs in support of a Soldier's professional and personal self-development goals.  Paragraph 5-13c states tuition assistance recoupment is not required when:

	a.  A Soldier has resolved reimbursement of TA for course withdrawal or incomplete.

	b.  A Soldier withdraws or does not complete a course for reasons clearly beyond the individual’s control, such as emergency leave/reassignment, illness/hospitalization, or unanticipated military mission.  Active duty Soldiers will process military withdrawals through GoArmyEd.  However, these will be subject to verification upon request.  If requested to provide documentation substantiating the military withdrawal, Soldiers will obtain a signed TA waiver documentation as outlined in paragraph 5–13c(2)(a).  Soldiers are required to withdraw when facing an academic failure.  However, Soldiers who fail for reasons previously outlined may address pending recoupment as an exception through the Education Services Officer/Education Services Specialist (ESO/ESS).  Exception decisions on TA recoupment do not change the failing grade.

	c.  Paragraph 5-13c(2)(a) states the Soldier is required to provide the name and contact information of the unit commander and the battalion commander or first lieutenant colonel in the Soldier’s chain of command for the military withdrawal in GoArmyEd.   

	d.  Paragraph 5-13c(2)(b) states TA waiver verification will include written justification verifying why the Soldier was unable to complete the course with specific dates the Soldier was unable to attend class and that the reason was unanticipated.

	e.  Paragraph 5-13c(2)(c) states the ESO will review the TA waiver verification and ensure required information and valid reasons are provided.

	f.  Paragraph 5-13c(2)(d) states the ESO will contact the unit commander or unit administrator in the event the TA waiver verification does not provide adequate or required information.

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

	a.  Chapter 14 deals with separation for various types of misconduct.  Paragraph 14-12c provides for the separation of a Soldier by reason of commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14.

	b.  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.  He contends the mention of a domestic event in the final summary of proceedings presented to the separation authority was an error and injustice.  This event was mentioned in the initial findings of the separation board on 
22 February 2013.  However, the president reconvened the board on 15 March 2013 to address a procedural error.  At that time the applicant's counsel stated that the allegation of domestic assault that the board had previously considered had since been dismissed by civilian authorities.  The fact that the previous allegation of domestic assault had been dismissed by civilian authorities was made a matter of record when the board reconvened.  Therefore, there is no error or injustice.

2.  He contends he was unfairly denied the ability to call another Soldier, SPC K, as a witness at his separation board hearing.  However, he failed to provide notice of this witness prior to the proceeding and the board president consequently declined to hear from the witness.  Under the circumstances and after considering the entire record, the SJA found that there was no basis for determining that the decision not to allow the testimony of SPC K constituted material error to the prejudice of the applicant.  Therefore, there is no error or injustice.

3.  He contends PTSD was the reason for his discharge.  His service medical records are not available for review. He contends he had successfully completed over 10 behavioral counseling sessions while still on active duty (as shown by letters from the VA showing that calculation of his compensation benefits is still in progress).  However, these letters were not a part of his application.  There is no evidence in his military personnel records of a diagnosis for PTSD and the applicant has not provided any substantive evidence of a diagnosis for PTSD.  Therefore, this cannot be considered as a mitigating circumstance for his discharge.

4.  He was properly discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  The ADRB upgraded the characterization of his discharge to general, under honorable conditions.

5.  The NJP and 22 formal counseling sessions he received during an 18-month period show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis on which to further upgrade his discharge to honorable.

6.  As indicated in the email, dated 2 October 2012, from the AIG, he was not approved for a TA waiver recoupment due to his untimely submission of his request.  A TA waiver verification must include written justification verifying why the Soldier was unable to complete the course with specific dates the Soldier was unable to attend class and that the reason was unanticipated.  The records available do not provide the dates the applicant was ordered to temporary duty or that it prevented him from attending classes.  Therefore, there is insufficient evidence to determine his eligibility for a TA waiver of recoupment.

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)                                         AR20140003284



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ABCMR Record of Proceedings (cont)                                         AR20140003284



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