IN THE CASE OF:  	Mr. Ryan Christopher Abate

      BOARD DATE:  	13 December 2013

      CASE NUMBER:  	AR20130008547
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code on the basis of equity as it had been approved by the separation authority.  The Board directed the DD Form 214 be reissued with the following changes:

      a. block 25, separation authority changed to AR 635-200, paragraph 14-12b
      
      b. block 26, separation code changed to JKA
      
      c. block 28, narrative reason for separation changed to Pattern of Misconduct 

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.



      
      
      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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he was improperly discharged.  He contends his discharge is improper because it was based on behavior that arose from has PTSD that was not properly addressed.  After his return from two tours in Iraq, he suffered from PTSD which caused him to be unable to deal with the stressors of returning to the US causing him to suffer from drug issues to deal with the PTSD.  He contends he was diagnosed with severe personality disorder while in the military and is currently under the care of a psychologist.  He believes he should have been discharged under the provisions of Chapter 5-13; which was recommended by his doctor prior to his discharge.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			10 August 2005
d. Reason/Authority/SPD/RE:		Commission of a Serious Offense, AR 635-200, 						Chapter 14, paragraph 14-12c, JKQ, RE-4
e. Unit of assignment:			534th Sig Co, 4th EN Bn, 3d BCT, Fort Carson, CO
f. Current Enlistment Date/Term:	2 January 2002, 4 years
g. Current Enlistment Service:	3 years, 7 months, 9 days
h. Total Service:			3 years, 7 months, 9 days
i. Time Lost:				14 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	25Q10, Multichannel Transmission Systems Operator
m. GT Score:				120
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Kuwait/Iraq (030407-040326)
q. Decorations/Awards:		ARCOM, NDSM, GWOTEM, GWOTSM, ASR, OSR-2
r. Administrative Separation Board: Yes
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No




SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 2 January 2002, for a period of 4 years.  He was 21 years old at the time of entry and had a high school equivalency (GED).  His record indicates he served in Kuwait/Iraq; received several awards to include the ARCOM, and achieved the rank of SPC/E-4.  He was serving at Fort Carson, CO when his discharge was initiated.  He completed a total of 3 years, 7 months, and 9 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 24 March 2005, 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. for going AWOL between (041008 and 041021)
b. testing positive for use of cocaine between (030211 and 030218 and 030301 and 030305)
c. testing positive for methamphetamines between (030211 and 030218)
d. testing positive for marijuana between (030205 and 030305)
e. failing to maintain accountability of his weapon x 2 (020805 and 020930)
f. failing to have himself presentable for a formation (020624)
g. failing to comply with a company rule or procedure (020303)
h. disobeying a standing order from the commanding general (041007)
i. disobeying a direct order (041116)
j. being late for formation x 3 (030306, 040804, and 041005)
k. failing to have his personal equipment ready for pre-deployment inspections between (030206 and 030210)
l. lying to a noncommissioned officer (040909)
m. displaying insubordination towards a noncommissioned officer (030213)
n. writing a bad check go Domino's Pizza (020913)
o. disobeying orders from a noncommissioned officer (021031 and 021127)
p. failing to report to his assigned duty or location x 14 (020807, 070814, 021031, 021127, 030106, 030210, 030220, 040805, 040913, 040916, 040929, 041006, 041020, and 041118)

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

3.  On 22 March 2005, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant 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 commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  
4.  The applicant's conditional waiver of his right to an administrative separation board, dated 22 March 2005, was disapproved.  The separation authority directed that the applicant appear before an administrative separation board.

5.  On 28 April 2005, the applicant was notified to appear before an administrative separation board and advised of his rights.  

6.  On 13 June 2005, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

7.  On 21 July 2005, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions, under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct.

8.  The applicant was discharged from the Army on 10 August 2005, with a characterization of service of under other than honorable conditions, under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense, with a Separation Program Designator code (SPD) of JKQ and an RE code of 4. 

9.  The unit commander's notification memorandum indicates 14 days of time lost for being AWOL from 8 October 2004 until his return on 21 October 2004.  The period of time lost is not noted on the DD Form 214 under review.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit),          18 February 2003, cocaine; and a positive test for dimethamphetamine, amphetamine, dated 18 Feb 2003.

2.  There is a positive urinalysis report contained in the record coded; PO (Probable Cause),          5 March 2003, cocaine/THC.

3.  An Article 15, imposed on 10 January 2003, for failure to go at the time prescribed to his appointed place of duty x 5 (020807, 020814, 021031, 021127, and 021127), disobeying a lawful order from a noncommissioned officer (021031), dereliction in the performance of his duties (020801 and 020930) and making and uttering a check to Domino's Pizza in the amount of $20.27 (020913).  The punishment consisted of reduction to the grade of E-1, forfeiture of $257.00 (suspended), and extra duty and restriction for 14 days (FG).

4.  Two DA Form 4187's (Personnel Action) indicating duty status changes of present for duty (PDY) to AWOL and AWOL to PDY.



5.  An Article 15, imposed on 29 September 2004, for failure to go at the time prescribed to his appointed place of duty x 2 (040913 and 040916) and making a false official statement x 2 (040909).  The punishment consisted of reduction to the grade of E-3, forfeiture of $348.00 pay per month for one month (suspended), and extra duty and restriction for 14 days (CG). 

6.  Record of supplementary action under Article 15, UCMJ, (vacation of suspension), which vacates the punishment of forfeiture of $348.00 pay per month for one month, imposed on 29 September 2004; for being absent without authority from his unit from 8 October 2004 until    25 October 2004 (21 October 2004).

7.  An Article 15, imposed on 19 November 2004, for going AWOL (041008-041021), failure to go at the time prescribed to his appointed place of duty (041116), disobeying a lawful order from a noncommissioned officer x 2 (041007 and 041116), and violating a lawful general order by violating the barracks visitation policy (041007).  The punishment consisted of reduction to the grade of E-2, forfeiture of $312.00 pay per month for one month (suspended), extra duty for 14 days, restriction for 14 days (suspended) (FG). 

8.  A Court Summons dated 7 January 2003, for making and uttering a check.

9.  A Report of Mental Status Evaluation, dated 21 October 2004, which diagnosed the applicant with depression NOS and borderline personality disorder, severe.  However, the applicant was cleared for any administrative action deemed appropriated by the command.

10.  Thirty-two negative counseling statements dated between 21 June 2002 and 18 November 2004, for disobeying a direct order, being absent without leave, failure to report, lying to a noncommissioned officer, positive urinalysis, late for formation, wearing of the wrong uniform, failure to obey orders or regulation, not being at his appointed place of duty, failure to maintain accountability of his equipment, insubordinate conduct towards a noncommissioned officer, failure to shave, and failure to fulfill financial responsibilities.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a letter dated, 27 March 2007, a notice of decision and right to appeal form, dated 27 March 2007, a copy of his Report of Mental Status Evaluation, dated, 21 October 2004 and Report of Medical Examination, dated 8 November 2001 and       2 November 2004, client current diagnosis, dated 26 February 2013, copy of a recommendation for award (ARCOM), copy of certificate for award of the ARCOM, a copy of his unofficial transcript, and a copy of his DD Form 214 for the period of service under review to include a DD Form 215.

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, and 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, 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 of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by three Articles 15 for multiple violations of the Uniform Code of Military Justice, three positive drug tests, and multiple 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 improperly discharged.  He contends his discharge is improper because it was based on behavior that arose from his PTSD that was not properly addressed.  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 discharge.  In fact, the applicant’s three Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  

5.  The independent documents submitted by the applicant were noted, indicating he was found eligible for seriously mentally III (SMI) benefits.  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.  

6.  The record shows that on 21 October 2004, the applicant underwent a mental status evaluation which indicates he had the mental capacity to understand and participate in the proceedings and was mentally responsible.  It was also noted by the Clinical Neuropsychologist that the applicant was given a psychological test which show a severe personality disorder with borderline and antisocial features.  His passé and recent conduct substantiates the testing results, as he has tested positive for drugs, bounced checks and was currently AWOL.  Given his attitude and behavior, it was unlikely the he would respond to command efforts of rehabilitation; and would continue to be a risk to the unit.  It was strongly recommended that the unit initiate a separation from the military service IAW Chapter 5-13, AR 635-200.  The applicant contentions that he should have been medically discharged was noted; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

7.  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.  Additionally, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (serious offense), authority as AR 635-200, paragraph 14-12c, and SPD code of JKQ.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b, with a pattern of misconduct.

9.  Therefore, recommend to the Board that the following changes be made:  
      
      a. change block 25, separation authority to AR 635-200, paragraph 14-12b
      
      b. change block 26, separation code to JKA
      
      c. change block 28, narrative reason for separation to Pattern of Misconduct    

10.  Except for the modifications as stated above the discharge was both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review     Date: 13 December 2013       Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Pattern of Misconduct)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12b
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JKA



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)		AR20130008547



Page 8 of 8 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1