IN THE CASE OF:  	Mr.

      BOARD DATE:  	10 May 2013

      CASE NUMBER:  	AR20130005037
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he is in the process of applying for federal benefits and needs an upgrade of his characterization.  He contends he was diagnosed with PTSD three years ago and is now incarcerated.  He believes his incarceration is a result of his PTSD.  He is unable to support his family and with an upgrade of his characterization he would be eligible for benefits to help support his family.  He also contends he served in Iraq where he engaged the enemy and served honorable.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 March 2013	
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			1 December 2007
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			HHC, 9th EN, Schweinfurt, GE
f. Current Enlistment Date/Term:	28 June 2005, for 4 years and 19 weeks
g. Current Enlistment Service:	2 years, 5 months, 4 days
h. Total Service:			2 years, 5 months, 4 days
i. Time Lost:				None	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	21B10, Combat Engineer
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia, Germany 
p. Combat Service:			Iraq (060901-071115)
q. Decorations/Awards:		NDSM, ICM, GWOTSM, ASR, OSR-2, CAB
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 28 June 2005 for a period of 4 years and         19 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served in Germany and Iraq.  He earned a CAB for his service in Iraq.  He completed 2 years, 5 months, and 4 days of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 September 2007, 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 misconduct (serious offense). Specifically for the following offenses:

a. receiving three Article 15's for the following offenses;
   (1)  failure to go or leave his place of duty
   (2)  disrespect toward a senior commissioned officer
   (3)  disobeying a lawful order from a noncommissioned officer
   (4)  contempt or disrespect toward a noncommissioned officer
   (5)  drunk on duty
b. pleading guilty at a Summary Court-Martial (070403)
(1)  wrongfully disobeying a commissioned officer
(2)  wrongfully stealing another Soldier's money x 2

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 18 September 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation Board, and did not submit a statement on his behalf.  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 of the separation with an under other than honorable conditions discharge.  

4.  On 2 November 2007, the applicant again 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 receiving a characterization of service no less favorable than under other than honorable conditions and did not submit a statement on his behalf.

5.  On 4 November 2007, the separation authority approved the conditional waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.


6.  The applicant was discharged from the Army on 1 December 2007, 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. 

7.  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 10 May 2006, for failure to go at the time prescribed to his appointed place of duty (060106), and violations of Articles 91 and 134.  The punishment consisted of reduction to the grade of E-1, forfeiture of $636.00 pay per month for two months (suspended), extra duty for 45 days, and restriction for 45 days, (FG) 

2.  Article 15, dated 15 September 2006, for being disrespectful in language towards a commissioned officer (060812).  The punishment consisted of forfeiture of $636.00 pay per month for two months, extra duty for 30 days, and restriction for 30 days, (FG) 

3.  Summary Court-Martial, dated 3 April 2007, for wrongfully disobeying a lawful command from a commissioned officer (061029), stealing another Soldier's money x 2 between (060801 and 060831 and 060825 and 060827).  The punishment consisted of confinement for 30 days.

4.  The available record does not indicate if the applicant served the punishment of confinement as indicated in the Summary Court-Martial.

5.  Article 15, dated 23 August 2007, for being disrespectful in language and deportment towards a noncommissioned officer (070816) and assault on a noncommissioned officer (070816).  The punishment consisted of reduction to the grade of E-1, forfeiture of $650.00 pay per month for two months, extra duty for 45 days, and restriction for 45 days, (FG) 

6.  Three negative counseling statements dated between 28 March 2006 and 4 April 2006, for reasons relating to being drunk on duty, disrespecting a noncommissioned officer, insubordinate conduct, and failing to obey orders or regulations.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement, a copy of his DD Form 214 under review, a copy of a progress note, dated 13 September 2010 which shows the applicant had been diagnosed (100820) with PTSD and ADHD.






POST-SERVICE ACTIVITY: 

None 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.  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 his service below that meriting a general, under honorable conditions or a fully honorable discharge.  The applicant’s record of service was marred by 3 Article 15's for multiple violations of the Uniform Code of Military Justice, a Summary Court-Martial, 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 contends he was diagnosed with PTSD and believes it's the reason for him being incarcerated for assault.  The independent document submitted by the applicant indicating he was diagnosed with PTSD and ADHD were noted.  However, the service record contains no evidence of PTSD or ADHD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  The record shows that on 5 September 2007, the applicant underwent a mental status evaluation which indicates he was mentally responsible.

5.  The applicant’s service accomplishments to include his service in Iraq and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  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 or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The records show the proper discharge and separation authority procedures were followed in this case.  

7.  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: 10 May 2013   Location: Washington, DC

Did the Applicant Testify?  None 

Counsel: NA

Witnesses/Observers: None 

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)		AR20130005037



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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