IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 January 2014

      CASE NUMBER:  	AR20130010245
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and considering 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 14-12c
      
      b. block 26, separation code changed to JKQ
      
      c. block 27, reentry code changed to 3
      
      d. block 28, narrative reason for separation changed to Misconduct (Serious Offense)

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

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to attend school.  He believes he was unjustly discharged.  He contends the charges against him for DWI were dismissed.  He contends on 17 March 2008, a mental status evaluation was completed on him indicating no evidence of any emotional or mental disorder of psychiatric significance to warrant disposition through medical channels.  However, he contends he was diagnosed with PTSD in 2006 by the Fort Bragg Mental Health as well as the Veterans Affairs and that he has been rated for PTSD by the Department of Veterans Affairs.  He contends that his mental status evaluation noted his PTSD diagnosis and also indicated no mental disorder.  He was using substances to cope with emotional and mental stress rooted in PTSD, and have since achieved sobriety.  He feels that he was unjustly discharge after serving three combat tours and receiving an AAM and CIB.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		23 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			12 June 2008
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			HHC, 1st Bn, 325th IN, Fort Bragg, NC
f. Current Enlistment Date/Term:	17 June 2004, 4 years
g. Current Enlistment Service:	3 years, 11 months, 26 days
h. Total Service:			3 years, 11 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11C1P, Indirect Fire Infantryman
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (050716-051101) Iraq (060719-061220 						and 070104-071103)
q. Decorations/Awards:		AAM, AGCM, ACM, ICM-w/2CS, NDSM, GWOTSM, 						ASR, OSR, CIB, NATOMDL
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 17 June 2004, for a period of 4 years.  He was 18 years old at the time of entry and a high school graduate.  His record indicates he served a period of combat in Afghanistan and two periods in Iraq; achieved the rank of SPC/E-4; and received several awards to include an AAM and the CIB.  He was serving at Fort Bragg, NC when his discharge was initiated.  He completed 3 years, 11 months, and 26 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 8 May 2008, 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 of misconduct (serious offense) for wrongfully inhaling compressed air for narcotic effect (070701) and for being arrested for driving while impaired resulting in the damage of three vehicles (080303) with a test content of .17 percent.

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

3.  On 12 May 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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.  

4.  On 20 May 2008, 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 12 June 2008, 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.  An MP Report that indicates the applicant was the subject of an investigation for impaired driving (.17 percent AC) and failure to decrease speed to avoid a collision. 

2.  Article 15, imposed on 19 July 2007, for wrongfully inhaling compressed air for narcotic effect (070701).  Punisment consisted of reduction to the grade of E-1, forfeiture of $651.00 pay for one month, and extra duty and restriction for 45 days, (FG).
3.  A General Officer Memorandum of Reprimand (GOMOR), dated 7 March 2008, for driving while impaired 3 March 2008, with an alcohol content of .17 percent.

4.  A negative counseling, dated 20 March 2008, concerning initiation of separation action under the provisions of Chapter 14, paragraph 14-12b.

5.  Report of Mental Status Evaluation, dated 17 March 2008, which indicates at the time the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possesses sufficient mental capacity.  There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, a copy of his report of mental status evaluation, dated 17 March 2008, and a copy of his driver improvement training certificate, dated 26 April 2008.

POST-SERVICE ACTIVITY: 

None 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 (drug abuse).

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 4.

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 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 an Article 15 for violation of the Uniform Code of Military Justice and a GOMOR for driving while impaired.

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 being awarded the AAM and CIB and serving three deployments.  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 incidents of misconduct or by the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  The applicant contends he was unjustly discharged and that his misconduct was the result of being diagnosed with PTSD.  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 unjustly discharge.  In fact, the applicant’s Article 15 and GOMOR justify the reason for discharge.  

6.  The applicant contends he was diagnosed with PTSD.  The Report of Mental Status Evaluation, dated 17 March 2008, was noted indicating Axis I: PTSD (From Chart), and the Report of Medical History which indicates PTSD since January 2006 which was noted by the applicant.  However, the record is void of any documents showing the applicant was evaluated for PTSD and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical conditions.  

7.  The applicant contends he was using substances to cope with emotional and mental stress rooted in PTSD.  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 applicant expressed his desire for an upgrade of his discharge for the purpose of being able to attend school.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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.  Additionally, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct (drug abuse), authority as AR 635-200, paragraph 14-12c(2), and SPD code of JKK.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct.

11.  Therefore, recommend to the Board that the following changes be made:  
      
      a. change block 25, separation authority to AR 635-200, paragraph 14-12c
      
      b. change block 26, separation code to JKQ
      
      c. block 27, reentry code changed to 3
      
      d. change block 28, narrative reason for separation to Misconduct (Serious Offense)

12.  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: Personal Appearance   Date:  13 January 2014   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers: Yes/Mother

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or additional contentions.

2.  In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	1	No Change:  4
(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 (Serious Offense)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12c
Change RE Code to:		3
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JKQ

Minority Opinion:

Minority Opinion (Army Discharge Review Case Mr. [redacted] ARBA Case # AR20130010245

1.  Reference the attached proceedings, dated 13 January 2014, in which the board, by a three to two vote, recommended that Mr. [redacted] denied relief of his request for an upgrade of his discharge from an Under Honorable Conditions (General).  The board did vote partial relief to change the reason of his discharge from Misconduct (Drug Abuse) to Misconduct (Serious Offense) based on a clerical error.  

2.  I disagree with the conclusions of the board and believe the discharge was inequitable.  I recommend that relief be granted in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority for the following reasons:

a). Combat. Mr. [redacted] served three combat tours; Afghanistan (050716-051101) Iraq (060719-061220), and Iraq (070104-071103).  In testimony, he explained that the short gap of two weeks between his second and third deployment was because his unit was deployed back as part of the surge of forces in Iraq.  Mr. [redacted] further explained the details of his actions as a combat infantryman experiencing the horrors of war.  After his first tour, he was diagnosed with PTSD.  However, he felt it was his duty as a Soldier to deploy and fight, which is what he did. 
 
b).  Length.  The applicant served three years, eleven months, 26 days of a four year enlistment.  While proper, it’s unusual to be discharged just four days short of one’s ETS and given the totality of his service seems unfair. 

c). Characterization too harsh.  While Mr. [redacted] record of service was marred with a Field Grade Article 15 for huffing and a GOMOR for DWI, his superior service in combat mitigated the discrediting entries in his service record.  AR 635-200 states that an “honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel.”  We weigh “acceptable conduct and performance of duty.”  A perfect record is not required.  After his Article 15 for huffing, Mr. [redacted] served another four months in combat in Iraq as an assistant squad leader.  This subsequent honest and faithful service in combat clearly outweighed this single act of inappropriate behavior.  While his huffing incident was noted in his notification memo, it’s clear his DWI charge was the impetus for his early discharge.  

d).  Circumstances surrounding the discharge.  In testimony, Mr. [redacted] provided compelling evidence that his DWI was dismissed by the court several months after his discharge for lack of evidence.  As he explained, he hit several cars in his apartment complex and then called the police.  The police could not determine when he consumed alcohol.  While his GOMOR for being charged with DWI was proper at the time, it seems now inequitable to be discharged for something that was later dismissed by the courts.  We have the opportunity to fix this by changing his narrative reason to Secretarial Authority.

e). Quality.  Mr. [redacted] was awarded the Army Achievement Medal, Army Good Conduct Medal, Combat Infantryman’s Badge, and his unit was awarded a Valorous Unit Award (Afghanistan; Permanent Orders 140-03).  

3.    DODI 1332.28 Discharge Review Board (DRB) Procedures and Standards specifies that “the  primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis.”  If you view the testimony, you’ll see a humble man who travelled from Tennessee with his mother to plead his case.  He served his country for nearly four years with three combat tours on the front lines in Afghanistan and Iraq.  As part of his service, he lost friends, his marriage, and clearly suffers from PTSD.  While difficult to reconcile poor conduct, I strongly believe Mr. [redacted] case warrants relief.  

						     Original signed	
						     COL, IN
						     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)		AR20130010245



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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