IN THE CASE OF:  	

      BOARD DATE:  	18 October 2013

      CASE NUMBER:  	AR20130007581
___________________________________________________________________________

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.

2.  The applicant states, in effect, he was granted a disability, medical board, and persecuted for Post Traumatic Stress Disorder (PTSD) symptoms.  He also requested correction of his reduction in rank and stop his medical board.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			17 April 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				11 January 2013
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				HHC, 3d, Battalion, 15th Infantry Regiment
4th BCT, Fort Stewart, GA
f. Current Enlistment Date/Term:		21 Jun 2007, 6 years
g. Current Enlistment Service:		5 years, 6 months, 20 days
h. Total Service:				12 years, 5 months 28 days
i. Time Lost:					None
j. Previous Discharges:			USAR, (000624-010618), NA 
   RA, (010619-040908), HD
   RA, (040909-060530), HD
   RA, (060531-070620), HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					113
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (030309-040215) (051119-061116)
(071027-081222)
q. Decorations/Awards:			ARCOM, AAM, VUA, AGCM-3, NDSM 
GWOTEM, GWOTSM, ICM-4CS, OSR-3
NPDR, MUC, CIB
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 19 June 2001 and reenlisted on 21 June 2007, for a period of six years.  He was 25 years old at the time of his reenlistment and a high school graduate.  He served in Iraq, earned an ARCOM and an AAM.  He achieved the rank of sergeant (SGT)/E-5 and completed 12 years, 6 months, and 28 days of military service.  At the time his discharge proceedings were initiated, he was a private (PVT/E-2) and serving at Fort Stewart, GA.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 16 November 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, commission of a serious offense.  Specifically for:

	a.  removal from Explosive Ordinance Disposal (EOD) training due to making false statements about injury.

	b.  assault of SPC P. 

	c.  wrongful cohabitation with SPC P.

	d.  wrongful sexual intercourse with SPC P and Mrs. A.

	e.  drove while intoxicated

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

3.  On 19 November 2012, the applicant 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 general, under honorable conditions 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 battalion commander reviewed the proposed action and recommended approval of the separation with a under other than honorable conditions discharge.  On 26 November 2012, the brigade commander recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 2 January 2013, the separation authority determined that the applicants medical condition was not a direct or substantial contributing cause of the conduct that led to the applicant’s administrative separation and that there is no other circumstances of the applicant’s case that warrant disability processing instead of further processing administratively.  The separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 11 January 2013, 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), 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, dated 23 February 2012, wrongful sexual intercourse with SPC P, a woman, not his wife (111001 and 111222).  The punishment consisted of reduction to the grade of E-4 and 45 days of extra duty (FG) 

2.  Article 15, dated 20 August 2012, wrongfully have sexual intercourse with Mrs. A, a married woman not his wife (120525).  The punishment consisted of reduction to E-2, forfeiture of $835 pay for two months (suspended), 45 days extra duty and 45 days restriction (FG).
      
3.  Two negative counseling statements dated 28 February 2011 and 1 March 2011, for integrity violations involving lying about the circumstances surrounding his amputated finger on his right hand.
      
4.  Four NCOERs covering the period of 060401 to 100531.  The applicant was rated as “Among the Best” on one report and “Fully Capable” on three reports by his raters and received a “2/1, two 2/2, and a 3/3” rating from his senior rater (SRs) for “Overall Performance and Potential.”

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided the following documents in support of his petition:

     a.  DD Form 149 (Application for Correction of Military Record), dated 12 April 2013.

     b.  DA Form 3947 (Medical Evaluation Board Proceedings), dated 12 October 2013.

     c.  DA Form 3349 (Physical Profile), dated 26 April 2012.

     d.  Medical Records with exam date of 11 June 2012.

     e.  DA Form 7652 (Physical Disability Evaluation System Commander’s Performance and Functional Statement), dated 15 May 2012.

     f.  DD Form 2648 (Pre-separation Counseling Checklist), dated 13 June 2012.

     g.  Enlisted Record Brief, dated 24 July 2012.

     h.  Statement for President, Army Grade Determination Review Board, dated 19 September 2012.

     i.  Memorandum for President, U.S. Physical Evaluation Board, dated 19 September 2012.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his 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.

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 pattern of 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 Articles 15 for 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 contends he was granted disability and a medical board.  However, Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record. 

5.  Furthermore, the applicant contends he was persecuted for his PTSD symptoms.  The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); 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 29 August 2012, the applicant underwent a mental status evaluation which indicates he was mentally responsible and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he was suffering from PTSD, 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.

6.  The applicant requested a correction for his reduction in rank and to stop his medical evaluation board.  However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

7.  The records show 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:  18 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:		No Change
Change RE Code to:			No Change
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)		AR20130007581



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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