Applicant Name:  ?????

Application Receipt Date: 2011/09/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "The discharged received is improper for several reasons and was received under extreme coercion. The discharged was forced for bad conduct after an incident that had happened which caused extreme stress while deployed to Afghanistan. When sent Germany after the incident, the medical staff in Germany felt it important that I not return to the front lines and instead sent me to Water Reed for Further evaluation. Both hospitals found me unfit for duty because of the mental stress I experienced.  I never had any disciplinary actions prior to this.  The unit forced me to write a statement about what had happened or I would receive an Article 15 for disobeying a direct order.  After writing my account of what had happened the unit returned stating that the unit said I was lying and I had made the whole thing up.  I was told that if I did not confess to lying, the rear detachment commander said they would do a trial by court martial and ensure that I received a dishonorable discharge and face prison time.  I asked to seek legal counsel and was denied.  I was told I could not leave until I confessed to lying or excepted trial by court martial.  When I asked to see the evidence he had against me and to allow me the opportunity to speak with legal, he told me if I did not sign the confession that was prepared and presented to me by the until he would see that my wife would be deported and my children taken from me.  Faced with that and the stress and mental state I was in I signed the confession the commander had presented to me.  I felt that an other than honorable discharge was better than losing my wife and children.  I was bullied into saying that I had lied.  I was not allowed to seek legal counsel.  I was not allowed to see the statements and evidence the unit stated they had to defend myself.  Throughout the whole process I had SGT A and the SGM trying to guide me but when I was told outcomes and decisions I was locked in the commanders office.  I feel I was bullied and lied to get me to say what they wanted me to say even though medical records and evaluations had been provided to support me."

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: 040322
Discharge Received: 			   Date: 040521   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: HQ, 3/321st FAR Rear Det, Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040204, Making a false official statement (031229), reduction to E4; forfeiture of $907.00 pay per month for two months (suspended); extra duty for 45 days; and restriction for 45 days, (FG).

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 010320    Current ENL Term: 06 Years  ?????
Current ENL Service: 	03 Yrs, 02  Mos, 15  Days ?????
Total Service:  		06 Yrs, 04  Mos, 01  Days ?????
Previous Discharges: 	RA-980204-010319/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 13B10/Cannon Crewmember   GT: 108   EDU: HS Grad   Overseas: Southwest Asia   Combat: Afghanistan
Decorations/Awards: AGCM, NDSM, GWOTSM, NCOPDR, ASR

V.  Post-Discharge Activity
City, State:  
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 March 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct- commission of a serious offense for making a false official statement, with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 21 April 2004, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  
       
       On 30 April 2004, the separation authority waived further rehabilitative efforts and directed the applicant be discharged with a characterization of service of under other than honorable conditions.

       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 applicant’s military records during the period of enlistment under review, the documents, and the issues submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his service below that meriting fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct", the separation code is "JKQ", and the reentry code is "RE 3".  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  
       
       The applicant contends his discharge was received under extreme coercion, was not allowed to seek legal counsel, and that he was bullied and lied too.  The analyst noted the applicant's contention; however, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was cohesed.   The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.   
       
       Furthermore, the Mental Health Evaluation Memorandum, dated 16 December 2003, found in the applicant's records, shows that the applicant was diagnosed with acute stress disorder and a history of traumatic brain injury.  However, the administration recommendations were that the applicant did not have a psychiatric condition, which would warrant disposition through medical channels and the applicant was psychiatrically cleared for whatever administrative action deemed appropriate by the command.  
       
       The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       In view of the foregoing, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Documents from Medical Records and Official Military Personnel File (69 pages), and DD Form 214 for the period of service under review.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable, and voted to deny relief.
        
IX.  Board Decision						
Board Vote:
Character - Change 1    No change 4
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder















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 AR20110018661
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