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, "I was discharged out of the Army for "pattern of misconduct".  This "pattern of misconduct" was from missing formations in the morning.  I have documented records from my provider stating that sleep apnea causes me to be "physically unable to wake up".  The issue of FTR's was not misconduct.  It was medical.
My unit never gave me a chance to improve performance after being issued a "CPAP" breathing device for my sleep apnea (which solved my FTR issues).  Since being issued a breathing apparatus 29 JUL10, I was never late to any formations ever again.  I had requested to start leave on 25 JUL10.  My chain of command (E-6 and E-7) both approved this leave.  I was late to formation 24 JUL10 due to my medical condition of sleep apnea.  (At this time, I had not been issued my breathing device yet) Since I was late I was informed that I was no longer going to be allowed to leave the next day 25 JUL10. I felt that this was very unfair.  Why be punished for a medical issue?  I went to my NCO's to talk with them, and let them know that my medical issue sleep apnea was the reason for my early morning FTR.  I was told that I was not going on leave, and that if I did, I would get 45 days of extra duty, loss of rank, and loss of pay.  I was willing to accept that, so I went on leave anyways.  However, at no point in time did my NCO's tell me that I could be discharged for this.  I had no idea.  I was told that if I left, I would have to deal with the consequences of extra duty, loss of rank, and loss of pay.  I accepted that, because I really thought punishment for my medical issue was just morally wrong.  Come to find out, not only did I get extra duty, loss of pay, and loss of rank. Then I started being chaptered out of the Army.  I will take my share of the responsibility for this, but this was also very poor NCO guidance that I received.  At no point in time did I realize that I could be discharged for this.  I feel that the "pattern of misconduct," was a pattern of a medical issue that needed to be addressed.  Since receiving my CPAP breathing device, I was never late to a formation ever again.  I had Zero FTR's.  This breathing device truly helped me feel 100% better, and enabled me to get quality sleep throughout the night.  I feel as though this medical issue set me back greatly in the military.  I felt as if I were being punished SEVERAL times for having this medical issue.  A general discharge was not the morally correct discharge.  "Pattern of misconduct" for medical issues?  Please tell me how that is fair?  I'm begging and pleading with this board to understand the medical issues I was going through, and the punishment I received for having medical issues.  I was a good soldier.  I deserved better guidance from NCO's, and I deserved a rehabilitative chance after being issued my breathing device for sleep apnea.  I did not, however, deserve to receive punishment for issues that were clearly medical.  Please upgrade my discharge, as it is truly the right thing to do.  Best Regards, A"

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: 100726
Discharge Received: 			   Date: 100823   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: A Btry, 3-13th FA Regt, Fort Sill, OK  

Time Lost: AWOL for 4 days (100626-100629), mode of return unknown.

Article 15s (Charges/Dates/Punishment): 100713, without authority, absented himself from his unit (AWOL) (100625-100628); reduction to E-3, forfeiture of $398 pay x 1 month, extra duty for 14 days and restriction for 14 days, (suspended), FG.

100723, the suspension of punishment of restriction for 14 days, was vacated for the new offense of without authority, failed to go at the time prescribed to his appointed place of duty (100712).

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

Counseling Records Available: Yes    No 
IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 080715    Current ENL Term: 03 Years  ?????
Current ENL Service: 	02  Yrs, 01  Mos, 05  Days ?????
Total Service:  		02  Yrs, 01  Mos, 05  Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 13M10 MLRS/HIMARS Crewmember   GT: 114   EDU: HS Grad   Overseas: None    Combat: None
Decorations/Awards: NDSM, GWOTSM, 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 26 July 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct, for failing to report to his appointed place of duty on divers occasions between (100219-100721); absenting himself from his unit (AWOL) (100625-100628); and failing to report to his appointed place of duty between (090928-091109), with a general, under honorable conditions discharge.  He was advised of his rights.
       
       On 3 August 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge. 
        
       On 13 August 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under 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 issues and document submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that 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 the misconduct, the applicant diminished the quality of his service below that meriting a 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 applicant requested a change to the narrative reason for separation.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph       14-12b, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," the separation code is "JKA," 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 he was diagnosed with sleep apnea, which caused him to be physically unable to wake up and that was the reason for his misconduct.  However, the applicant's available record does not contain any evidence of in-service diagnosis of sleep apnea as indicated in the independent documentation from the Southwestern Neurosciences and the applicant did not submit any corroborating evidence of in-service diagnosis of sleep apnea or any related medical issues indicating the discharge was the result of a medical condition.  
       
       Further, the analyst acknowledges the independent documents (Southwestern Neurosciences), submitted with his application indicating that the applicant was diagnosed with sleep apnea. 
       
       The applicant further contends being issued a breathing apparatus 29 July 2010, and was never late to any formations again and his unit never gave him a chance to improve his performance. The applicant bears the burden of  the presentation of substantial and credible evidence to support his contention.  There is no evidence in the record, nor has the applicant provided any evidence, to support the contention that he was never late for formations again. 
       
       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 also contends he was a good Soldier and deserved a rehabilitative chance after being issued his breathing device for sleep apnea.  The analyst considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct, the multiple negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice.
       
       Additionally, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements. 
       
       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 (111209); and a Letter, Southwestern Neurosciences, dated (100608).

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 0    No change 5
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
?????


























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 AR20110024464
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