IN THE CASE OF:	Mr.

      BOARD DATE:  	1 May 2013

      CASE NUMBER:  	AR20120022567
___________________________________________________________________________

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 discharge to be both proper and equitable and voted to deny relief.  
      



      
      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 an upgrade of his discharge characterization from general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  He states, in effect, that he was prosecuted by the Army under a general court-martial for offenses that he was found not guilty.  Just before his trial he was granted leave.  While leave had just begun he was recalled and was unable to get back and his unit would not assist him in getting back.  He was then charged with AWOL even though several weeks later he returned on his own.  He was found guilty of the AWOL charge.  He had a permanent S3 profile and had started a medical board while at Fort Bliss.  After his court martial punishment was complete he was then reassigned to Fort Sill, OK and was evaluated again by a doctor and was told that he was not clear for any administrative action that his unit wanted to take due to his offense because he had already been punished for and not discharged.  Over a year after he had been in trouble the unit at Fort Sill decided to again send him for medical evaluation because it was taking so long for his medical board to get restarted.  The doctor changed my his diagnosis in order to clear him medically after 3 doctors had already confirmed his diagnosis due to his command calling and telling the doctors to clear him.  His congressional representative then delayed his discharge but a week later his unit discharged him and issued him a DD Form 215 to correct his previous DD Form 214. He was not legally medically cleared and was given a general under honorable conditions discharge 3 months before his ETS.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 December 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			4 May 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			PCF, USA Garrison, Fort Sill, OK
f. Current Enlistment Date/Term:	8 August 2006, 5 years and 17 weeks
g. Current Enlistment Service:	5 years, 11 days 
h. Total Service:			5 years, 11 days
i. Lost time:				260 days	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (080314-090315) 
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ICM-CS, 							GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		No	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's service record shows he enlisted in the Regular Army on 8 August 2006; he was 19 years old at the time and a high school graduate.  He served for 5 years and 11 days, achieved the rank of SPC/E-4 and had a combat tour for one year.  His record shows that he earned an ARCOM, AAM, and an AGCM.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  He was discharged as a PVT/E-1.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.  

3.  The applicant’s record contains the separation authority’s memorandum dated 1 May 2012, waiving all rehabilitation and directing the discharge with a characterization of general, under honorable conditions.  

4.  The applicant was separated under Orders 123-1304, dated 2 May 2012, HQDA USA Garrison, Fort Sill, OK with an effective date of 4 May 20012.   

5.  The applicant’s service record indicates he had 260 days of  lost time for AWOL for 127 days (100315-100719); AWOL again for 3 days (110303-110305), apprehended; and 130 days of military confinement (110323-110730).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  General Court-Martial adjudged on 23 March 2011, for a violation of Article 86, AWOL from 15 March 2010 until 20 July 2010.  His punishment consisted of confinement for 120 days, forfeiture of pay in the amount of $1,468.00 for four months and reduction to E-1.  

2.  Special Court-Martial adjudged on 24 August 2011, for two specifications of disobeying a lawful order from a commissioned officer.  The sentence consisted of confinement for 2 months.

3.  A mental status evaluation dated 31 August 2011 that indicates the applicant was suffering from a PTSD condition related to his combat service.

EVIDENCE SUBMITTED BY THE APPLICANT: 

An online application, copy of congressional correspondence, copy of a medical evaluation board (MEB) proceedings, an MEB summary, report of medical examination and history, and 3 mental status evaluations.

POST-SERVICE ACTIVITY: 

None were provided with the application.

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.

4.  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).  

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.



DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and reason change was carefully considered.  However, after examining his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or change the reason for his discharge.  

2.  The available documents in the record confirm 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the serious acts of misconduct as shown in his two court-martial convictions, the applicant diminished the quality his service below that meriting an honorable discharge.  

3.  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.  

4.  The applicant contends that he was unfairly discharged while undergoing medical board proceedings; he had been diagnosed with PTSD and received no help from his unit. 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 unjustly discriminated.   In fact, the applicant’s two courts-martial justify a pattern of serious misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity.  It appears the applicant’s generally good record of service prior to the events that led to his court martial combined with his diagnosis of PTSD was the basis for his receiving a GD instead of the normal UOTHC discharge.  The record contains no evidence of arbitrary or capricious actions by the applicant’s command, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

5.  Further, the applicant contends he should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

6.  The applicant also requested a change to the reason for his discharge.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct ,” and the separation code is "JKQ."  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 and separation code, entered in block 26 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.  

7.  Based on the available evidence in the record, it appears the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

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

Did the Applicant Testify:  No 

Counsel: None

Witnesses/Observers: N/A

Board Vote:
Character  	Change:  0	No Change:  5
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 RE Code to:		N/A
Grade Restoration to:		N/A
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		  AR 20120022567

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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