IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 October 2013

      CASE NUMBER:  	AR20130006270
___________________________________________________________________________

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 discharge.

2.  The applicant states, in effect, he was suffering from PTSD at the time of discharge; however, the condition was undiagnosed at the time.  He contends he tried seeking medical attention but received no support from his command.  The misconduct with his supervisor was the result of not receiving medical attention for his anxiety.  Since his discharge he has been receiving medical treatment at the Veterans Affairs for his PTSD conditions.  He has been rated with 70% disability for his PTSD that was directly related to his military service.  He believes his discharge should be upgraded and his narrative reason changed because his conditions were never treated or addressed while he was in the military.

DISCHARGE UNDER REVIEW INFORMATION:


a. Application Receipt Date:		29 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			19 July 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			A Trp, 1st Sqd, 9th Cav Rgt, 4th BCT, APO AE
f. Current Enlistment Date/Term:	29 December 2009, 3 years and 17 weeks
g. Current Enlistment Service:	1 year, 6 months, 21 days
h. Total Service:			1 year, 6 months, 21 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	19D10, Cavalry Scout
m. GT Score:				88
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (100917-110707)
q. Decorations/Awards:		ICM-w/CS, NDSM, GOWTSM, 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 29 December 2009, for a period of 3 years and 17 weeks.  He was 18 years old at the time and a high school graduate.  His record documents no acts of valor or significant achievements.  He was serving in Iraq when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 29 June 2011, 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. failing to go at the time prescribed to his appointed place of duty (110531)
b. being disrespectful in language and deportment towards a noncommissioned officer x 2 (110531 and 110531)
c. being disrespectful towards a noncommissioned officer (110131)

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

3.  The applicant waived his right to legal counsel, and was advised of the impact of the discharge action 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 commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 30 June 2011, 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 19 July 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with 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, imposed on 9 June 2011, for failure to go at the time prescribed to his appointed place of duty (110531), being disrespectful in language and deportment towards a noncommissioned officer x 2 (110531 and 110531).  The punishment consisted of reduction to the grade of E-1, forfeiture of $734.00 pay per month for two months, extra duty for 45 days; and restriction for 45 days (suspended) (FG).  
2.  Two negative counseling statements dated between 23 October 2010 and 31 May 2011, for communicating a threat, dereliction of duty, disrespect to a senior noncommissioned officer, failing to follow a lawful order, disrespect to a noncommissioned officer, and failing to report to his appointed place of duty.

3.  A memorandum, dated 9 June 2011 "Incomplete status of counseling packet for PFC W, M.J." which indicates he received a Summarized Article 15 on 1 January 2011 for disrespecting a superior noncommissioned officer.  The Summarized Article 15 document was not found in the record.

4.  A Report of Mental Status Evaluation, dated 25 June 2011, showing the applicant was diagnosed with an adjustment disorder with disturbance of emotions and conduct.

5.  A memorandum, dated 28 June 2011 "Administrative action of M.W., which accounts for administrative action taken against the applicant in October of 2010.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a copy of his Department of Veterans Affairs Rating Decision letter, dated 7 February 2013, a letter from a staff psychiatrist, dated 1 October 2012, and a copy of his DD Form 214 for the period of service under review.

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, 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 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 fully honorable discharge.  The applicant’s record of service was marred by two Article 15s for multiple violations of the Uniform Code of Military Justice and two 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 indicated his desire to have his narrative reason for discharge 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.  

5.  The applicant contends he was suffering from PTSD at the time of discharge and that his condition was undiagnosed at the time. The Board acknowledges the applicant's independent document from the Veterans Administration granting him a service connected disability for Post-Traumatic Stress Disorder (PTSD).  However, the service record contains no evidence of Post-Traumatic Stress Disorder 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 25 June 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  The applicant was screened for TBI and PTSD and did not meet diagnostic criteria for those disorders.

6.  The applicant contends he tried to seek medical attention for his PTSD conditions but received no support from his command.  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 attempted to seek medical attention for a PTSD conditions and that he received no support from his command.  

7.  The records show the proper discharge and separation authority procedures were followed.

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:  9 October 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: 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)		AR20130006270



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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