Applicant Name:  

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

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "On or about April 8, 2005 I was detonated by a VBIED while on patrol near Taji, Iraq. This incident precipitated a rapid decline in function punctuated by an inability to perform assigned duties, inability to perform primary MOS, inability to perform secondary MOS, extremely poor decision making ability, extreme aggression & agitation and becoming unfit & unsuitable for duty while continuing combat operations in support of Operation Iraqi Freedom III. This decline in performance is made evident by a negligent discharge and receipt of an AR15 (May 27, 2005), an explosive confrontation with another soldier which resulted in preferral for Special Courts martial (June 2, 2005), a CH10 was requested and approved, I was released from theater on June 20, 2005 and released from service on July 20, 2005. On May 11, 2005 directly after the incident for which I was preferred took place, I self referred to the Combat Stress Team Cobra Clinic because I was concerned about my extreme levels of stress and the extreme nature of the incident that had just taken place. The nature of this incident was and is completely out of character, which is supported by the letter or recommendation dated June 15, 2005 written by the preferring officer Cpt. Z, (after charges were filed, preferral AND approval of CH10) and further supported by AAM, VUA, CIB citations. While at the Cobra clinic my chief complaint (SEE Cobra Clinic Section.1) was: remorseful for incident, extreme stress going on mission outside wire due to VBIED, failed an 11-C gunners exam (scored expert on the 7 previous exams and was base gun gunner), had been reassigned to the Cook platoon, and had my weapon removed by order of the company commander. The clinic also documented that I was both Homicidal and Suicidal (SEE Cobra clinic: vii Potential for violence). Directly after that it was noted that I "wanted help" and “is looking to participate” (SEE Cobra clinic: ix Attitude/insight towards the visit). The assessment and diagnosis (SEE Cobra clinic), “Soldier appears anxious to go out on patrols since hit with VBIED…” I was given a Return to Duty, on what planet is someone who is homicidal AND suicidal fit for duty? Because I self referred my chain of command never saw this information. The Description and characterization of my discharge is excessive, inequitable and unjust as the following Army Regulations were not followed: AR 635-200 chapter 13-2 (b,1-2), AR 635-40 chapter 2-9 (a,b,c,d,e); AR 635-40 chapter 4-8; AR 40-501 chapter 3-3(b), chapter 3-31, chapter 3-32 (b,c), chapter 3-33 (b,c). Had these Regulations been adhered to I would have received a Ch13 discharge as my command clearly believed me to be unfit for duty and believed there no possibility for rehabilitation (SEE CH10 approval).  It is my firm belief that due to the High OP-Tempo maintained by my unit, lack of awareness regarding Army regulations at the time of occurrence, a lack of understanding of my psychiatric and physical (brain) state, a general lack of knowledge regarding the common effects, signs and symptoms of large concussive events (VBIED) and my previous exemplary behavior the outburst that lead to my being preferred was misinterpreted as gross insubordination. The reality being that, my rapid decline in performance was due directly to a detonation of 500lbs worth of explosives (8x155mm HE) inside a small white car that almost killed me and my crew (SEE VBIED Documentation). Every day after that, while I would go head long into danger, never once displaying an ounce of cowardice, my mind was secretly scared shitless, “what if I get hit by a bigger one?” It was not the fear of death that affected me, but the fear that I would be blown in half and burned to death inside my HUMV while looking at the mutilated bodies of my friends. If I had been command referred to be evaluated by a PHYSICIAN at an MFT as per AR-600-200, ch13-2 after any or all of the following incidents: reassigned to the cooks, had my weapon taken away, failed a gunners exam, had an negligent discharge, raged on my fellow soldier, was determined to be both homicidal and suicidal, was found to be clearly unfit for duty. It is only reasonable to conclude that in light of my previous performance a discharge in accordance with AR 600-200 Ch13 and an honorable characterization would have been awarded; which is what I am asking for this Records Review Board to consider now.    Prior to the preferred, Spc. R and I had known each other for 3 years, I liken him to a brother. I even performed my first combat casualty assessment on him after we were hit by the previously mentioned  VBIED a month earlier. He is pictured lying face up in the HUMV (VBIED Documentation). Of the 4 people that survived the VBIED all were removed from the platoon within roughly the same time period: Sgt. W (the same NCO named in my charging documents as having "been kicked") was redeployed because he became suicidal. Spc. S developed a sleeping disorder, received an AR 15 for falling asleep while on a mission and was reassigned. Spc. R was reassigned to another unit for the duration of the deployment as well. The Psychiatric and physical effects of the VBIED event cannot be under stated. Since my discharge I have dedicated myself to earning a degree in Mechanical Engineering, I am including 3 civilian letters of reccommendation that further support my NORMAL high level of functioning. Had I know to do so I would have been evaluated a physician instead of the Spc. at the Cobra clinic. I would have shared the information from the cobra clinic with my commanders."

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: 050605
Discharge Received: 			   Date: 050721   Chapter: 10      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 1-13th AR Regt, Fort Riley, KS 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 050527, negligently discharged an MP5 (sub-machinegun), in the life support area (050305); reduction to E-2, forfeiture of $692 pay x 2 months (suspended) and extra duty for 45 days, (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 010822    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03  Yrs, 11  Mos, 00  Days ?????
Total Service:  		03  Yrs, 11  Mos, 00  Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11C10 Indirect Fire Infantryman   GT: 123   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (030407-040331), (050131-050623)
Decorations/Awards: AAM, NDSM, ICM, GWOTEM, GWOTSM, ASR, CIB, VUA

V.  Post-Discharge Activity
City, State:   
Post Service Accomplishments: The applicant stated he has dedicated himself to earning a degree in mechanical engineering.

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 2 June 2005, the applicant was charged with behaving with disrespect toward 1LT K, his superior commissioned officer (050509); unlawfully choking SPC R, by grabbing his throat and dragging him to the ground and continued choking and punching him (090509); and unlawfully kicking SGT C with his foot (050509).  On 4 June 2005, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  
       
       Further, the applicant indicated he understood he could receive an under other than honorable conditions discharge and the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement in his own behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The intermediate and senior intermediate commanders recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  
       
       On 10 June 2005, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge.  The applicant was to be 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 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

       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 issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The evidence of record indicates that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  
       
       The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.  By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.
       
       The applicant requested a change to the narrartive reason for separation.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "KFS," and the reentry code is "RE 4."
       
         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 the detonation of a vehicle born improvised explosive device (VBIED) impaired his ability to perform his duties.  The evidence of record shows the applicant self-referred to the combat stress clinic, the assessment indicated he displayed signs of anxiety and guilt over actions/inactions.  The applicant was returned to duty and was scheduled to meet with clinic personnel the next week and once a week thereafter. 
       
       The applicant further contends he self-referred to the combat stress clinic because of concern for his extreme levels of stress and the extreme nature of the VBIED.  Even though the applicant self-referred to the combat stress clinic, he has provided no evidence that he should not be held responsible for his misconduct.
       
       The applicant also contends his discharge was excessive, inequitable and unjust.  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 contention. There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that his discharge was unjust.  
       
       Further, 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. 
       
       The applicant additionally contends since his discharge he is dedicated to earning a degree in mechanical engineering.  The analyst acknowledges the applicant's successful transition to civilian life and noted the accomplishment outlined with the application.  However, in review of the applicant’s entire service record, the analyst found that this accomplishment does not overcome the reason for discharge and characterization of service granted. 
       
       Therefore, the analyst determined that 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: 13 June 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Online application, dated (111202); Issues page, same as in the application; Enlisted Record Brief (ERB), dated (050628); six (6) pages of photographs; 55th Medical Company (CSC), Intake Assessment, five (5) pages, dated (050512); Chapter 10 Discharge Packet, twelve (12) pages; Letter of Recommendation, dated (050615); AAM Citation, dated (040301); Valorous Unit Award Citation; CIB Orders 298-1, dated (031025); Application, John Hopkins School of Nursing, four (4) pages, dated (091019); Santa Barbara City College Application, dated (0910230;   Letter, Santa Barbara City College, dated (091025); a Post Deployment Health Assessment, four (4) pages, dated (050614); DD Form 214, member 4, dated (050721); and member 1 copy was not attached as indicated with the application. 

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 2    No change 3
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: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
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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 AR20110024452
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