IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 October 2013

      CASE NUMBER:  	AR20130003232
___________________________________________________________________________

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 was 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 from general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that he was unjustly discharged.  He contends his PTSD, TBI, memory loss and other ailments handicapped him.  He was falsely accused of letting the details of his SFC's adultery lifestyle out.  He contends that because of his mental issues diagnosed while on active duty, he should have been sent before a medical board and /or been medically retired.  His unit did not want to do the paper work required for a medical board so they created charges of assaulting his senior noncommissioned officer.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			28 July 2009
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14,						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			B Co, 202d BSB, 4th SBCT, 2d IN Div, Fort Lewis, 						WA
f. Current Enlistment Date/Term:	23 November 2005, 4 years
g. Current Enlistment Service:	3 years, 7 months, 22 days
h. Total Service:			3 years, 7 months, 22 days
i. Time Lost:				14 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92A10, Automated Logistical Specialist
m. GT Score:				106
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070404-080610)
q. Decorations/Awards:		ICM-w/CS, NDSM, GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No





SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 23 November 2005, for a period of 4 years.  He was 23 years old at the time and a high school graduate.  He was serving at Fort Lewis, WA when his discharge was initiated.  His record indicates he served in Iraq.  The record does not contain any evidence of acts of valor or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 30 April 2009, 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.  Specifically for the following offenses:

a. receiving a company grade Article 15 for failure to report to accountability formation (090209),

b. receiving a Summarized Article 15 for failing to report for four formations (081117),

c. disobeying a lawful order from a noncommissioned officer,

d. failure to report for formation on five other occasions.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 4 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on 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 with a general, under honorable conditions discharge.  

4.  On 18 May 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 28 July 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

6.  The applicant’s record of service indicates 14 days of time lost; 4 days 7 June 2009 until    10 June 2009 and 10 days 4 July 2009 until 13 July 2009.  The reasons for the time lost were not found in the record.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Summarized Record of Proceedings Under Article 15, UCMJ, imposed on 17 November 2008, for failure to go at the time prescribed to his appointed place of duty x 4 (080924, 080930, 081024, and 081024) and disobeying a lawful order from a noncommissioned officer (080924).  The punishment consisted of extra duty for 14 days and restriction for 14 days.

2.  Article 15, imposed on 9 February 2009, for failing to go at the time prescribed to his appointed place of duty (090105).  The punishment consisted of forfeiture of $326.00 pay per month for one month (suspended), extra duty for 14 days (suspended), and restriction for 14 days (suspended) (CG).

3.  Eighteen counseling statements dated between 24 September 2008 and 5 January 2009.  Nine of the counseling were related to negative issues to include; failure to report and not keeping his supervisor/supervisors notified of his whereabouts, disobeying a lawful order and not being at his appointed place of duty, accountability, attire and appearance of his uniform, not following sick call policy, and having an unauthorized job.

4.  Mental Status Evaluation, dated 20 March 2009, which indicates the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and DD Form 149, self-authored statement, and a copy of an incomplete memorandum.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms 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 misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Article 15's for multiple violations of the Uniform Code of Military Justice and several negative counseling statements.

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 submitted an undated and unsigned memorandum indicating the approving authority disapproved his discharge under the provisions of Chapter 14, paragraph 14-12b, for a pattern of misconduct.  However, the record shows that on 18 May 2009, the approving authority signed a memorandum approving the applicant discharge under the provision of Chapter 14, paragraph 14-12b, for a pattern of misconduct.  
5.  The applicant requested 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  

6.  The applicant contends he was unjustly discharge.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharge.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements substantiated the misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

7.  Furthermore, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

8.  The applicant contends that he suffers from PTSD and TBI which contributed to his misconduct.  The applicant’s service record contains documentation that supports the applicant manifested symptoms of PTSD and TBI.  The evidence of record shows he was being treated by competent medical authority and was showing a very favorable response in the TBI program.  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 20 March 2009, the applicant underwent a mental status evaluation which indicates he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any administrative proceedings.  It appears the applicant’s chain of command determined that although he was suffering from symptoms of PTSD and TBI, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

9.  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:  9 October 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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 Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA



















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)		AR20130003232



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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