BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140020218 


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) for the period ending 3 November 2005 to show:

* he received an honorable discharge vice a general, under honorable conditions discharge
* in item 28 (Narrative Reason for Separation) he was separated by reason of a mental disorder vice misconduct, commission of a serious offense

2.  The applicant states his mental illness was a factor behind his conduct while deployed to Afghanistan in 2005.  While on active duty at that time, the people who evaluated him to determine if there was anything wrong with him psychologically didn't make an accurate assessment of his mental state.  The lack of a diagnosis of post-traumatic stress disorder (PTSD) or bipolar disorder caused difficulties in coping with his illnesses. 

3.  The applicant provides two DD Forms 214 and a Department of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant enlisted in the U.S. Army Reserve (USAR) on 19 March 2002.  On 15 August 2002, he was assigned to the 955th Engineer Detachment, Fort Leonard Wood, MO.

2.  He entered active duty as a member of the USAR on 17 January 2003.  He served in Kuwait/Iraq from 17 March to 9 July 2003.  He was honorably released from active duty on 24 June 2004 at Fort Riley, KS, to the control of the USAR. 

3.  On 18 February 2005, he enlisted in the Regular Army.  He was subsequently assigned to B Company, 864th Engineer Battalion, Fort Lewis, WA.  On 29 March 2005, he deployed with his unit to Afghanistan in support of Operation Enduring Freedom.

4.  Between 7 and 24 June 2005, he was counseled on four occasions by his platoon sergeant and first sergeant (1SG) for disobeying lawful orders from noncommissioned officers (NCO), assaulting an NCO, and for failing to report to his appointed place of duty at the prescribed time on two separate occasions.

5.  On 24 June 2005, he was counseled by his 1SG that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c for misconduct - commission of a serious offense.  In addition, he was being referred for a mental health evaluation due to his refusal to carry his weapon for fear of doing something stupid and for refusing to go to his jobsite because he couldn't handle the situation.

6.  On 24 June 2005, he underwent a mental status evaluation.  A DA Form 3822 (Report of Mental Status Evaluation) shows the examining mental health professional stated, in part:

   a.  The applicant's behavior was passive and aggressive, he was fully alert and fully oriented, his mood and affect were anxious, his thinking process was clear, his thought content was normal, and his memory was good.  He determined the applicant had the mental capacity to understand and participate in any proceedings against him and that he was mentally responsible (emphasis added)  He stated that the clinical evaluation indicated the applicant had an adjustment disorder with disturbance of conduct and a personality disorder not otherwise specified (NOS) with narcissistic and antisocial features.
   
   b.  He was psychiatrically cleared for any administrative action deemed appropriate by the command to include nonjudicial punishment (NJP), court-martial, or an administrative separation under the provisions of Army Regulation 635-200, chapter 14.  He further stated he (the applicant) did not have a severe mental disorder and was not considered mentally disordered.  However, he manifested a long-standing disorder of character, behavior, and adaptability that was of such a severity so as to preclude adequate military service and continued service placed him at high risk.  He had the full capacity to understand right from wrong and to adhere to the rights of others.

7.  On 1 August 2005, he received NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for three specifications for failing to go at the time prescribed to his appointed place of duty, two specifications of disobeying a lawful order from an NCO, two specifications of disobeying a lawful order from a commissioned  officer, one specification of being disrespectful in language to an NCO, and for assaulting an NCO.  The punishment imposed was reduction to specialist (SPC)/E-4 and forfeiture of $900 per month for two months.

8.  On 12 August 2005, the applicant was notified by his immediate commander of his intent to initiate separation against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - the commission of a serious offense.  He stated the reasons were because of the NJP he had received for being absent without authority on three separate occasions, being disrespectful to an NCO, assaulting an NCO, and failing to obey lawful orders on four separate occasions.  He further stated he was recommending he (the applicant) receive an under other than honorable conditions characterization of service.

9.  On 20 August 2005, he was counseled by legal counsel on the basis for the separation action initiated against him for the commission of a serious offense, its effects, and the procedures and rights available to him.  He submitted a request for a conditional waiver on the contingent he receive a general, under honorable conditions characterization of service and was counseled on the effect of waiving his rights.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he was issued a general, under honorable conditions discharge.  He further acknowledged he understood that if he was discharged under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws, he expect to encounter substantial prejudice in civilian life, and he would be ineligible to apply for enlistment in the Army for a period of 2 years after his discharge.  He waived consideration of his case by a board of officers and he elected not to submit a statement in his own behalf.

10.  On 22 August 2005, his senior commander recommended approval of the discharge action and his service was characterized as general, under honorable conditions.

11.  The separation authority subsequently approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense and directed he receive a general (under honorable conditions) discharge.  On 27 September 2005, he departed Afghanistan and on 3 November 2005 he was discharged accordingly.

12.  The DD Form 214 he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under honorable conditions (general) characterization of service.  His DD Form 214 also shows the following entries:

* item 25 (Separation Authority) - Army Regulation 635-200, paragraph
14-12c 
* item 26 (Separation Code) - JKQ
* item 28 - Misconduct, Commission of a Serious Offense 

13.  On 27 June 2014, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge and determined his discharge had been both proper and equitable.

14.  The applicant provides a VA Rating Decision, dated 26 November 2013, wherein it stated, in part:

   a.  He was granted temporary 100 percent (%) disability effective 1 February 2013 for service-connected PTSD because of hospitalization over 21 days from 18 December 2012 to 31 January 2013.  A VA examination found he had total occupational and social impairment, persistent delusions and hallucinations difficulty adapting to work and stressful circumstances, and an inability to establish and maintain effective relationships.
   
   b.  The overall evidentiary record showed the severity of his disability most closely approximated the criteria for a 100% evaluation.  The medical evidence showed that he was competent to manage his financial affairs.  Since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to future review examination.
   
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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter (emphasis added).

	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.

16.  Army Regulation 635-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of JKQ is the correct code for Soldiers separating under Army Regulation 635-200, paragraph 14-12c and "misconduct, commission of a serious offense" is the corresponding entry for the narrative reason for separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that while serving in a war zone the applicant received NJP for being absent without authority on three separate occasions, being disrespectful to an NCO, assaulting an NCO, and failing to obey lawful orders on four separate occasions.  Accordingly, his commander initiated separation action against him.

2.  At the time of his discharge, he was found to be mentally responsible for his actions and had the mental capacity to understand right from wrong and to adhere to the rights of others.  Therefore, he was appropriately discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense.  This narrative reason for separation is the only authorized reason for service members separated under this provision and is properly shown on his DD Form 214.

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

4.  The fact that he has since been diagnosed with PTSD by the VA is noted; however, it appears his command took his emotional state of mind at the time into consideration when processing his discharge for misconduct as he was issued a general, under honorable conditions discharge instead of an under other than honorable conditions discharge.

5.  Based on his overall record, it is clear his service did not meet the standards of acceptable conduct for Army personnel that would merit an honorable discharge.  

6.  In view of the foregoing, he is not entitled to 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)                                         AR20140020218





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ABCMR Record of Proceedings (cont)                                         AR20140020218



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