Applicant Name:  ?????

Application Receipt Date: 2012/04/19	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant, states in effect, that after serving in Iraq and being injured, he began to suffer from nightmares about the war zone, was having problems sleeping and was suffering from pain problems beyond the control provided by his medications.  At the time of his discharge he only had 13 days until his ETS and his commander was harassing him to take an early discharge.  He welcomes the opportunity to tell his side of the story that led to his discharge.

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: 100917
Discharge Received: 			   Date: 101007   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: A Co, Warrior Transition Bn, Fort Richardson, AK 

Time Lost: 23 days total.  AWOL two times:  17 days (071210-071226) and 6 days (090429-090503), both times returned to his unit.

Article 15s (Charges/Dates/Punishment): 100407, theft of a polo shirt and a hoodie from the PX (091026).  The second page of the Article 15 is not contained in the record; the punishment he received is unknown.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 070927    Current ENL Term: 3 Years  2 weeks
Current ENL Service: 	02 Yrs, 11 Mos, 20 Days ?????
Total Service:  		05 Yrs, 06 Mos, 23 Days ?????
Previous Discharges: 	IADT 040720-041218/UNC
                                       ARNG 040624-070623/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 91B10/Wheel Vehicle Mechanic   GT: 99   EDU: HS Grad   Overseas: SWA   Combat: Iraq (080712-090217)
Decorations/Awards: NDSM, ICM-CS, 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 17 September 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 living in on-post housing illegally, taking prescribed medications the wrong way, taking his girlfriend’s narcotic medications, failing to show up to appointments, being noncompliant with treatment, undergoing an investigation of stolen military property and tools which were found in the basement of the applicant’s house, and pending charges of simple assault consummated by battery, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 21 September 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than honorable 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 commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 1 October 2010, the applicant again consulted with legal counsel and indicated that his unit commander notified him of his intent to recommend him for separation under section 14-12b of AR 635-200.  In this notification, the commander stated that the worst discharge he could receive was  a general, under honorable conditions.  On 21 September 2010, on advice from his attorney, CPT W, he submitted a conditional waiver of his right to a separation board.  The waiver was conditioned on receiving an honorable discharge.  A day or two later, he states, that his commander called him into his office, and he threatened to re-notify him that he could receive a separation under Other Than Honorable conditions, and that he was going to push for that, unless he withdrew his conditional waiver.  The following week, his command threatened to do this immediately unless he provided a response.  The statement indicates that he waived his right to a separation board, contingent upon receiving a characterization of no worse than general, under honorable conditions.  His attorney also submitted a statement on the applicant’s behalf and such a statement is contained in the record.  The applicant further stated that he was making this request under coercion by his command, because they threatened his VA benefits.  He indicated that he had serious medical problems that will need treatment after he was separated and did not want to risk them.  The applicant indicated he retained a copy of this statement.
       
       The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       The record contains three Military Police Reports dated 24 March 2010, 29 October 2009, and 7 May 2009 which indicate the applicant was the subject of investigations for allegations of driving under the influence, larceny of PX property and being absent without leave.

       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, and the issues 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 repeated incidents of 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 analyst acknowledges the applicant’s issue that he only had 13 days until his ETS; however, the record does not contain any evidence of arbitrary or capricious actions by the command.  The record shows that before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about his deficiencies, which could lead to separation.  The analyst noted the command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  The evidence of record establishes that the applicant was afforded a reasonable opportunity to overcome the noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.  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.  
       
       Furthermore, the record does not support the issue that the applicant suffers from Post-Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  The record shows that on 30 July 2010, the applicant underwent a mental evaluation which indicates that he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  The evaluation indicates the applicant suffered from chronic back syndrome and a back injury.  
       
       The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review which included a combat tour.  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, by the multiple negative counseling statements, and the documented actions under Article 15 of the Uniform Code of Military Justice.
       
       The analyst noted the applicant’s issue about his desire to rejoin the Army and serve again.  However, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.  
       
       Therefore, 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: 10 September 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: VA Form 21-4138, withdrawal of a conditional waiver, DD Form 214, and a DD Form 149.

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: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

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 AR20120007951
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