IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 January 2014

      CASE NUMBER:  	AR20130007220
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, notwithstanding the minority report, 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 reinstatement of his rank.

2.  The applicant states, in effect, that his discharge was inequitable because he became ill with the mental illness known as schizophrenia in 2009 and at the time of discharge he was having a schizophrenia psychotic episode coupled with a severely injured knee.  Army medical personnel improperly diagnosed his condition which led to his irrational and illogical behavior.  He also contends he had good service which included 14 months of combat and that he is receiving service connected disability from the Department of Veterans Affairs for medical conditions.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			18 December 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			C Co, 3rd Bn, 7th IN, Fort Stewart, GA
f. Current Enlistment Date/Term:	14 June 2006, 3 years and 17 weeks
g. Current Enlistment Service:	3 years, 6 months, 5 days
h. Total Service:			3 years, 6 months, 5 days
i. Time Lost:				2 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				135
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (071027-081204)
q. Decorations/Awards:		ARCOM, AGCM, 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 14 June 2006, for a period of 3 years and        17 weeks.  He was 22 years old at the time of entry and a high school graduate.  His record indicates he served a period of combat in Iraq; earned several awards to include the ARCOM and AGCM.  He achieved the rank of SPC/E-4.  He completed a total of 3 years, 6 months, and 5 days of active military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record contains an Offer to Plead Guilty letter, dated 19 November 2009, which was signed by the applicant indicating, having examined the charges and specification against him accepted trial by SCM; pleaded guilty to the charges and the specifications; and waived his rights to an administrative separation board with the understanding that he would be discharged under other than honorable conditions.  In exchange for his action the SCM convening authority agrees to refer his case to a SCM.

2.  The evidence contained in the applicant’s service record indicates that on 4 December 2009, 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. wrongfully offered violence toward CPT D.K.S.,

b. being absent without leave for two days,

c. disobeying a lawful order from his superior commissioned officer, and

d. disobeying a lawful order from a noncommissioned officer on more than one occasion.

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

4.  On 4 December 2009, the applicant consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board, and did not submit 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.

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


6.  The applicant was discharged from the Army on 18 December 2009, 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. 

7.  The applicant’s record of service indicates 1 day of time lost for being AWOL from             11 November 2009 until his return on 12 November 2009.  The applicant's DD Form 214 under review does not indicate the period of time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 12 March 2009, for disobeying a lawful order from a noncommissioned officer (12 February 2009).  The punishment consisted of reduction to the grade of E-3 (suspended), forfeiture of $960.00 pay (suspended), and extra duty and restriction for 14 days (CG).

2.  SCM, dated 19 November 2009, for going AWOL (091110-091112) offering violence towards CPT S.  Punishment consisted of reduction to the grade of E-1 and confinement for   30 days. 

3.  Several negative counseling statements dated between 2 September 2008 and                    9 December 2009, for failure to report (AWOL), missing movement, disobeying a lawful order from a commissioned officer, monthly counseling, failure to follow a lawful order, possession of personally owned firearms, Summary Court-Martial, pending Chapter 14-12c, and expectations.

4.  A Mental Status Evaluation dated 19 November2009 in which the applicant was diagnosed with Axis I, Adjustment Disorder with mixed disturbance of emotions and conduct.  Remarks paragraph 1 state, in part, "(SM) completed scales for PTSD and TBI.  The SM did not indicate that he was experiencing any symptoms of PTSD or TBI."  The observing provider, Mr. M, a licensed clinical social worker found no psychiatric disease or defect that warrants disposition through medical channels.  The provider also found the applicant had the mental capacity to understand and participate in the proceedings against him.

5.  Two DA Forms 4187 dated 11 November 2009 and 13 November 2009 changing his duty status from present for duty (PDY) to AWOL and AWOL to PDY.

6.  DA Form 458 (Charge Sheet), dated 19 November 2009, for the offenses of going AWOL    10 November 2009 to 12 November 2009, offering violence against a commissioned officer    (13 November 2009), disobeying a lawful command from a commissioned officer                   (13 November 2009), disobeying a lawful order from a noncommissioned officer (12 November 2009), and wrongfully communicating a threat to a commissioned officer (13 November 2009).




EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, documents from his medical records concerning treatment for his knee injury, mental status evaluation, Memorandum for Military Magistrate, dated 15 November 2009, copy of his application for health benefits to the Department of Veterans Affairs, medical document from Sports Medicine North and Health & Education Services, Inc, and Rating Decision Letter, dated 17 May 2011, a letter of support from the applicant's mother, and a copy of his DD Form 214 for the period of service under review.

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.  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 a SCM and an Article 15 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 contends that he had good service which included 14 months in Iraq. The applicant’s service accomplishments 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 the Uniform Code of Military Justice.

5.  The applicant also contends his discharge was inequitable because he became ill with schizophrenia and medical personnel improperly diagnosed his condition which led to his irrational and illogical behavior.  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 improperly diagnosed by medical personnel.  The applicant's statements alone do not overcome the government's presumption of regularity and the additional documentation provided with the request was found to be insufficient for upgrading the characterization of service.   

6.  Furthermore, the record shows that on 19 November 2009, the applicant underwent a mental status evaluation which indicates he did not indicate that he was experiencing any symptoms of PTSD or TBI and that the applicant was cleared for any administrative actions deemed appropriated by his command.  The service record contains no evidence of schizophrenia diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

7.  The evidence of record acknowledges the applicant was receiving treatment for a knee injury and that he believed his difficulties stem from him not receiving adequate treatment for a knee injury.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

8.  The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing.  The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  

9.  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.  

10.  The applicant expressed his desire to have his rank reinstated to SPC/E-4.  However, the applicant’s requested change does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.

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

12.  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:  29 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Board Vote:
Character Change:  2	No Change:  3
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

Minority Report:

SUBJECT:  Minority Opinion Army Discharge Review Board Case AR20130007220, [name redacted].		29 January 2014

1.  Reference the attached proceedings, dated 29 January 2014, in which the Department of the Army Discharge Review Board, by a three to two vote, voted to retain Mr. [name redacted] general under honorable conditions characterization received under the provisions of Chapter 14-12.c, Misconduct, Serious Offense, AR 635-200 on 18 December 2009.  The minority believes the narrative reason and characterization of service remain unjust owing to mental defect which was responsible for Mr. [name redacted] misconduct and that this defect was not properly diagnosed before initiating his separation.

2.  Key Facts.  

      a.  Mr. [name redacted] was an infantry Soldier who served three years, 6 months and 5 days of a three year, 17 week enlistment.  His service included a combat tour in Iraq, an award of the Army Commendation Medal and an award of the Good Conduct Medal.  The record is void of any evidence of serious misconduct prior to March 2009.  Between March 2009 and November 2009 the record reflects multiple incidents of serious misconduct to include periods of AWOL, disobeying orders, and threatening his commander.
      
      b.  On 19 November 2009, as part of the unit considering a Chapter 10 (In Lieu of Trial by Court-Martial) separation, Mr. [name redacted] received a behavioral health assessment conducted by a licensed clinical social worker.  The relevant finding of this assessment was an Axis I diagnosis of “Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.”  Given the range and scope of Mr. [name redacted] misconduct, this finding was not surprising as his behavior supported the diagnosis.

      c.  On 4 December 2009, Mr. [name redacted] commander notified him of the intent to separate him under the provisions of Chapter 14-12.c for wrongfully offering violence to his commanding officer, for being absent without leave for two days, for disobeying a lawful order from a superior commissioned officer and for disobeying an order from a non-commissioned officer on multiple occasions.  
      
      d.  Mr. [name redacted] was subsequently separated with a general characterization of service, on the surface appropriate given his court-martial conviction, punishment under Article 15 and associated misconduct.
      
      e.  On 4 June 2010, Mr. [name redacted] was seen by a Ph.D. psychologist who, after administering multiple diagnostic tests and interviews with both Mr. [name redacted] and his parents determined the 19 November 2009 diagnosis was incorrect.  The psychologist found, in fact, that Mr. [name redacted] was exhibiting symptoms consistent with a diagnosis of schizophrenia.
 
3.  The minority finds Mr. [name redacted] separation to be improper under the provisions of Chapter 14-12C for reasons.

      a. The 19 November 2009 diagnosis reflects the misconduct in which Mr. [name redacted] engaged and not the underlying cause for that misconduct.
      
      b. The 19 November 2009 diagnosis is, therefore, an incorrect diagnosis which did not accurately capture the severe mental defect affecting Mr. [name redacted].
      
      c. The unit, believing there was no mental defect, separated Mr. [name redacted] as a disciplinary matter as opposed to separating him as a medical matter.  This impacted both the narrative reason as well as the character of separation received.
      
4.  Considering the available facts, the minority finds the appropriate disposition of this case is a change in the narrative reason to Secretarial Authority with a characterization of service as honorable.  This is not to excuse the misconduct; but, rather, to recognize it stemmed not from a desire on the Soldier’s part to perform poorly but from the severe mental defect which compelled behavior for which he could not be responsible.

 						     Original Signed
						     COL, MI
						     Board Member

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)		AR20130007220



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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