IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 April 2014

      CASE NUMBER:  	AR20130009370
___________________________________________________________________________

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 characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding the discharge, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to SGT/E-5.



      
      
      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 general, under honorable conditions or honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, that his misconduct was the result of his diagnosed PTSD.  The applicant contends that his discharge should be upgraded for equitable reasons; he contends he served two combat tours in Iraq, during which he received multiple individual awards and commendations.  Upon his return from his first combat deployment, he experienced severe PTSD and other anxiety.  He was placed on medication and received treatment.  However, he stopped this treatment in order to deploy to Iraq a second time.  While serving in Iraq without his medications, he attempted suicide.  Following his return from deployment he struggled with severe PTSD and attempted suicide twice, was hospitalized a number of times, and committed several acts of misconduct.  As a result of this misconduct, he accepted a Chapter 10 discharge.  During the discharge process two of his commanders indicated that they believed the applicant to be “mentally defective, deranged, or abnormal” at the time of his misconduct.  Three of his commanders recommended that he receive a general, under honorable conditions discharge.  The applicant believes his discharge should be upgraded to reflect his meritorious combat service and in recognition of the rolls that his diagnosed PTSD played in his misconduct.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			19 October 2010
d. Reason/Authority/SPD/RE Code:	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:			E Trp, 1st Bn, 10th Cav Rgt, Fort Carson, CO
f. Current Enlistment Date/Term:	11 November 2005, 6 years
g. Current Enlistment Service:	4 years, 11 months, 9 days
h. Total Service:			6 years, 11 months, 3 days
i. Time Lost:				None 
j. Previous Discharges:		DEP-031117-040105/NA											RA-040105-051110/HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	19D1P, Cavalry Scout
m. GT Score:				112
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq x2 (050306-060213 and 080828-090511)
q. Decorations/Awards:		ARCOM-2, AAM-2, AGCM, ICM-w/2CS, NDSM, 							GWOTSM, GWOTEM, NPDR, ASR, OSR-2, CAB, 							MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 5 January 2004, for a period of 3 years.  He was 21 years old at the time of entry and a high school graduate.  On 28 September 1998, he reenlisted for a period of 6 years.  His record indicates he served two periods in Iraq; achieved the rank of SSG/E-6, and earned several awards to include two ARCOMs, two AAMs, the AGCM, and the MUC.  He completed a total of 6 years, 11 months, and 3 days of total military service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains two DD Form 458s; Charge Sheet's which indicate that on    18 August 2004 and 17 September 2010 the applicant was charged with the following offenses:

a. unlawfully striking B.R. in the face with his fist and dragged her down the street by her hair (100603),

b. endangered the welfare of two children under the age of 16 by leaving them unattended in his quarters for over 3 hours with no adult present in the home (100622),

c. wrongful use of marijuana between (100720 and 100819).

2.  On 21 September 2010, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense or a lesser included offense and requested a general, under honorable conditions discharge.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement on his own behalf.  The applicant's chain of command recommended a GD.  

3.  On 30 September 2010, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 19 October 2010, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

5.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 27 January 2010, for unlawfully striking PFC B.S. in the face with his fist (100102).  The punishment consisted of reduction to the grade of E-6, forfeiture of $1,291.00 pay per month for two months (suspended), extra duty for 45 days, and restriction for 45 days (FG).

2.  Three NCOERs covering the period of 1 March 2007 to 28 February 2010.  The applicant was rated overall as "Fully Capable," "Among the Best" and “Marginal."

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, legal counsel brief, a personal statement, enlisted record brief, memorandum for commander, dated 21 September 2010, VA C&P Examination, dated 4 August 2010, post deployment health assessment, dated 29 January 2006, adult preventive and chronic care flow sheets, medication profile, health record, dated 26 March 2008, 19 December 2008, 21 February 2010, 18 March 2010, and 3 June 2010, record of proceedings under Article 15, UCMJ, dated 25 January 2010, record of inpatient treatment, dated 7 April 2010, 13 April 2010, 12 July 2010, and 22 September 2010, medical record, date 23 June 2010, discharge packet, and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provide with the application. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.



2.  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.

3.  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.  

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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit a partial upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a. Length and quality of service:  The applicant served 6 years, 11 months, and 3 days of total military service, thus the preponderance of his service was honorable,

	b. The record confirms the applicant received several awards, specifically two ARCOMs, two AAMs, the AGCM, and the MUC,

	c. The circumstances surrounding the discharge; specifically the applicant's chain of command recommended approval of his discharge with a characterization of service of general, under other than honorable conditions.  The commander and intermediate commander's indicated they had reasonable grounds for belief that the applicant was at the time of his misconduct, mentally defective, deranged, or abnormal.  Based on this and also of the charges against the applicant they based their recommendation for a characterization of service of general, under honorable conditions.



      d.  Also as stated in the compensation and pension examination report, dated 4 August 2010, the applicant suffered from PTSD, depression, alcohol abuse signs and symptoms which resulted in deficiencies in most of the following areas; work, school, family relations, judgment, thinking and mood.  

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  

5.  The applicant requested his narrative reason for discharge be 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The regulation further stipulates that no deviation is authorized.  

6.  The applicant contends that he had good service which included two deployments and receiving several awards.  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 service to honorable as shown by the incidents of misconduct and the documented actions under Article 15 of the Uniform Code of Military Justice.

7.  The applicant contends his meritorious combat service, being diagnosis with PTSD, and receiving multiple personal decorations mitigates his misconduct.  The applicant’s service accomplishments and quality of his service (i.e., two deployments and receiving several awards) 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 service to honorable as shown by the incidents of misconduct and the documented actions under Article 15 of the Uniform Code of Military Justice.

8.  The applicant’s service record contains documentation that supports a diagnosis of in service 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 the applicant was receiving treatment for his medical conditions by qualified medical personnel as noted in the compensation and pension examination reports indicating the applicant's symptoms of PTSD, depression, and alcohol abuse required continuous medication.  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.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct; there are many Soldiers with the same condition that completed their service successfully.  

9.  The applicant contends his use of marijuana was the result of his suffering from PTSD.  However, the applicant was aware of the Army's policy related to use of illegal drugs.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as an NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.

10.  Therefore, the narrative reason for discharge being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	       Date:  11 April 2014        Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		SGT/E-5
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)		AR20130009370



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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