IN THE CASE OF:  	Mr.

      BOARD DATE:  	1 May 2013

      CASE NUMBER:  	AR20120020913
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  


      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to honorable or general, under honorable conditions and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, through legal counsel that his discharge was inequitable because he was suffering from the effects of Post-Traumatic Stress Disorder and Depression during his second combat tour.  Legal counsel contends there was an error in discretion for not considering the mental status of the applicant and medical documentation of treatment for depression and post traumatic disorder documented during the time the applicant committed the minor offenses.  An equity consideration is requested for the applicant who will need mental health assistance for the rest of his life.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		2 November 2012	
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			18 July 2011
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 							14-12c, JKQ, RE-3
e. Unit of assignment:			HHC, 2/4th AV Bn, Fort Hood, TX
f. Current Enlistment Date/Term:	6 March 2008, 6 years
g. Current Enlistment Service:	3 years, 4 months, 13 days
h. Total Service:			4 years, 11 months, 17 days
i. Time Lost:				None	
j. Previous Discharges:		RA-060802-080305/HD 
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	15U10, CH-47 Helicopter Repairer
m. GT Score:				124
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (080615-090608) Afghanistan (100623-110620)
q. Decorations/Awards:		ARCOM, AGCM, ACM-w/CS, ICM-w/CS-2, NDSM, 						GWOTSM, NATO-ASM, ASR, OSR-2
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No




SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 2 August 2006 as a high school graduate.  On 6 March 2008, he reenlisted for a period of 6 years; he was 20 years old at the time.  He was trained in and awarded military occupational specialty (MOS) 15U, CH-47 Helicopter Repairer.  He served two combat tours.  He earned an ARCOM and AGCM and completed 4 years, 11 months, and 17 days of total active duty service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that 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 assaulting two noncommissioned officers. 

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 28 May 2011, the applicant offered to plead guilty at a Summary Court-Martial and to waive his right to an Administrative Separation Board in exchange for not being tried at a Special Court-Martial.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  The separation authority approved the unconditional waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. It was also directed that the applicant be reduced to the lowest enlisted grade as approved in his Summary Court-Martial on 6 June 2011.

5.  The applicant was discharged from the Army on 18 July 2011, with a characterization of service of under other than honorable conditions, under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  









EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 19 August 2010, for disobeying a lawful order from a noncommissioned officer (100804) and assaulting a noncommissioned officer (100804).  His punishment consisted of reduction to E-3, forfeiture of $961.00 pay per month for one month, extra duty for 45 days, and restriction for 45 days (FG).

2.  Summary Court Martial, dated 6 June 2011, for disrespect to a noncommissioned officer (110430) and assaulting a noncommissioned officer (110430).  The punishment consisted of reduction to E-2 and forfeiture of $1,096.00.

3.  Three negative counseling statements dated between 7 August 2010 and 3 May 2011, for recommendation for UCMJ action and separation from the Army.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his medical records and a letter from counsel addressing his issues of propriety and equity.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 being absent 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.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.




3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a. Length and quality of service:  The applicant served a total of 4 years, 11 months, and 17 days of total active duty service.

	b. The record confirms the applicant received several awards, specifically ARCOM and AGCM.

	c. The applicant served combat tours in Iraq and Afghanistan.

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.

5.  The applicant contends through legal counsel that his medical conditions were not taken into consideration and that his offenses were minor.  The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD) and that he was receiving treatment.  However, a careful review of the entire record reveals that his medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 5 May 2011, medical personnel indicated the applicant was mentally sound and able to appreciate any wrongfulness in his conduct.  He had the mental capacity to understand and participate in board or other administrative proceedings.  Further, there are many Soldiers with the same condition that completed their service successfully.

6.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his medical conditions were not taken into consideration.  The record confirms by the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  

7.  The applicant requested that his narrative reason for discharge be changed.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date: 1 May 2013    Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: yes [ REDACTED ]

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A


Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20120020913



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1