Applicant Name: ?????
Application Receipt Date: 2009/07/29 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: Untreated PTSD/TBI, combat tours, VA diagnosis of PTSD/TBI, command did not afford him due process through Administrative Separation Board, overall length and quality of service, achieved the rank of SSG/E-6, numerous awards including the Combat Action Badge.
II. Were Proper Discharge and Separation Authority procedures followed?
Tender Offer: NA
See Attachments: Legal Medical Minority Opinion Exhibits
III. Discharge Under Review
Unit CDR Recommended Discharge: Date: 060504
Discharge Received: Date: 060518 Chapter: 14-12c(2) AR: 635-200
Reason: Misconduct (Drug Abuse) RE: SPD: JKK Unit/Location: B Btry, 2-17 FA Bn, Fort Carson, CO
Time Lost: None
Article 15s (Charges/Dates/Punishment): 060112, wrongful use of marijuana (050926-051025), reduction to E-5, forfeiture of pay in the amount of $1,030 per month for two months, 45 days of extra duty and restriction (FG)
060302, failure to report on two occasions (060215 and 060216), being disrespectful to an NCO (060215), reduction to E-4 (FG)
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 21
Current ENL Date: 020718 Current ENL Term: 6 Years ?????
Current ENL Service: 03 Yrs, 10Mos, 01Days ?????
Total Service: 06 Yrs, 03Mos, 29Days ?????
Previous Discharges: RA 000120-020117/HD
Highest Grade: E-6 Performance Ratings Available: Yes No
MOS: 13D10/FA Autom Spc GT: 98 EDU: HS Grad Overseas: Korea, SWA Combat: Iraq/Kuwait (030301-030607) and Iraq (040805-050814)
Decorations/Awards: ARCOM-3, AAM-3, NDSM, ICM, GWOTSM, GWOTEM, KDSM, CAB, NCOPDR, ASR, OSR
V. Post-Discharge Activity
City, State: Memphis, TN
Post Service Accomplishments: None listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 4 May 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconductcommission of a serious offense for testing positive for marijuana on three occasions (051213, 051026, and 051023), with an under other honorable conditions discharge. He was advised of his rights. The record also shows the unit commander had previously initiated discharge proceedings on 6 March 2006 for the exact same reasons and at the time recommended a general under honorable conditions discharge which was supported by the battalion commander.
On 8 March 2006 and again on 4 May 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and his legal counsel submitted a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.
On 16 May 2006, the separation authority approved the unconditional waiver request, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under. The applicant was reduced to the lowest enlisted rank.
b. Legal Basis for Separation:
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate, however, a general, under honorable conditions or an honorable discharge may be granted.
c. Response to Issues, Recommendation and Rationale:
After a careful review of all the applicants available military records, and the issues and documents submitted with his application, the analyst found several mitigating factors that would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions. The analyst does not condone the applicants misconduct; however, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is inequitable. The analyst found that the length and quality of the applicant's service to include his two combat tours, his multiple awards of the Army Commendation Medal and the Army Achievement Medal and the Combat Action Badge and the medical circumstances surrounding his misconduct as diagnosed by military authorities on 24 January 2006 with PTSD, mitigated the discrediting entries in his service record.
Accordingly, the analyst recommends that the applicants characterization of service be upgraded to general, under honorable conditions. However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable. This action entails restoration of grade to E-4/SPC.
Further, the analyst determined the applicant was afforded due process. The record shows he unconditionally waived his right to an administrative separation board on two occasions, which was approved by the general court martial convening authority.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 7 May 2010 Location: Washington, D.C.
Did the Applicant Testify? Yes No
Counsel: NA
Witnesses/Observers: NA
Exhibits Submitted: Medical assessment from Evans Army Hospital, Article 15, Mental status evaluation, Chapter 14 recommendations as GD, statement of rights, Trial Defense Services memorandum, Chapter 14 recommendation as UOTHC, VAMC Memphis record, VAMC letter (090714), and description of possible side effects for bipolar medications.
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review, and considering the analysts recommendation and rationale, the Board determined that the characterization of service was too harsh based on the applicants length and quality of his service to include his numerous awards, combat service and the circumstances surrounding his misconduct and as a result, it is inequitable. Accordingly, the Board voted to grant relief by changing the characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was both proper and equitable and voted not to change it. This action entails restoration of grade to E-4/SPC.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 5 No change 0
Reason - Change 0 No change 5
(Board member names available upon request)
EDGAR J. YANGER
Colonel, U.S. Army
X. Board Action Directed President, Army Discharge Review Board
Issue a new DD Form 214
Change Characterization to:
Change Reason to: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: E-4/SPC
Legend:
AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial
BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial
CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge
DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable
FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090013131
______________________________________________________________________________
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