IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 January 2014

      CASE NUMBER:  	AR20130011971
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined the discharge to be 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 under other than honorable conditions to honorable and a change to the narrative reason for separation.

2.  The applicant states through his counsel, in effect, he was subsequently diagnosed with Post Traumatic Stress Disorder (PTSD); he was hospitalized on several occasions, both before and after his separation from the Army, for symptoms and behaviors directly related to his PTSD diagnosis.  He has discharged for misconduct despite his PTSD diagnosis.  His discharge severely limits his employability.  The Army failed to recognize, accept and properly address his PTSD was a major cause of the misconduct that led to his separation.  He is working hard to stay clean and sober.  He desires to receive VA benefits for healthcare.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		24 June 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			8 April 2010
d. Reason/Authority/SPD/RE Code:	In Lieu of Trial by Court-Martial/AR-635-200/Chapter 
      10/KFS/RE-4
e. Unit of assignment:			B Co, 1-68th Armor Regiment, 3rd Brigade Combat 						Team, Fort Carson, CO
f. Current Enlistment Date/Term:	21 January 2009, 2 years
g. Current Enlistment Service:	1 year, 2 months, 18 days
h. Total Service:			3 years, 8 months, 8 days
i. Time Lost:				None
j. Previous Discharges:		RA (060801-090120)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				105
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (071203-090215)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-W/CS, ASR, OSR						CIB, VUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			Yes/9 December 2011/Records Review

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army 1 August 2006, for a period of 4 years and            16 weeks. He was 18 years old at the time of entry and a HS graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  He reenlisted on 21 January 2009, for a period of 2 years and was 21 years old at the time.  His record also shows that he served a combat tour, earned several awards which included an ARCOM, AGCM and a CIB; he achieved the rank of SPC/E-4.  He was serving at Fort Carson, CO when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      10 March 2010, the applicant was charged with the following offenses:

     a.  for the purpose of avoiding service as an enlisted person, feign mental derangement (100310)

     b.  wrongfully communicating to Dr. FJG, that if he was forced to board an aircraft and deploy, he would kill his chain of command (100310)

2.  On 10 March 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.  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 record indicated the applicant did not submit a statement on his behalf.  The unit and intermediate commanders recommended that the charges and their specifications be referred to a Special Court-Martial.  

3.  On 15 March 2010, the senior commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

4.  On 18 March 2010, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

5.  The applicant was discharged from the Army on 8 April 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10,             AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

6.  The applicant’s record of service does not contain any documented record of unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record did not contain any other relevant information.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two DD Forms 293 (a previous application), two attorney’s letter (two pages) and a (previous letter, sixteen pages), an authorization to release records and information, Department of Veterans Affairs, rating decision (two pages), Department of Veterans Affairs, compensation decision (six pages), a CD-ROM which contained 27 enclosures, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions 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.  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 "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 his characterization of service and a change to the narrative reason for separation 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.  Overall length and quality of service:  The applicant served 2 years, 5 moths, 20 days of his initial contract of 4 years and 16 weeks.  He reenlisted for 2 years and served 1 year,         2 months, 18 days of that enlistment, thus the preponderance of his service was honorable.

     b.  The record confirms the applicant received several awards, specifically an ARCOM, AGCM and a CIB for a tour in combat.

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 is too harsh and as a result inequitable. 

4.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.

5.  The applicant requested a change to the narrative reason for separation.  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.

6.  The applicant contends he was subsequently diagnosed with PTSD; he was hospitalized on several occasions, both before and after his separation from the Army, for symptoms and behaviors directly related to his PTSD diagnosis.  The evidence of record (unit commander’s memorandum, dated 12 March 2010) indicated the applicant admitted himself into inpatient treatment for alcohol dependency at Parkview Medical Center’s Chemical Dependency Unit in Pueblo, Colorado, from 5 January 20l0 until 1 March 2010.  His provider, Dr. SDM, treated the applicant throughout his stay.  In numerous phone conversations with the unit commander,   Dr. M related to him the applicant was generally uncooperative and was putting forth little effort towards treatment.  Dr. M noted that, during Cognitive Processing Therapy (the Department of Defense (DoD protocol for treating PTSD), the applicant never put forth a sincere or honest effort to deal with any traumatic episodes that he may have experienced while deployed.  
Dr. M further noted that he exhibited none of the classic signs of PTSD, and got the sense that his stay in Parkview was part of a large temper-tantrum to not deploy.  The unit commander also stated in the memorandum, that Dr G, a clinical psychologist, did not assess the applicant suffers from PTSD or any other similar syndrome. 

7.  Further, the independent document (Department of Veterans Affairs), submitted with his application indicating that the applicant was diagnosed with PTSD determined to be service connected and rated as 10 percent disabling, and other mental issues which he was prescribed medications to treat his conditions.  However, in review of the applicant’s entire service record; these medical conditions did not overcome the reason for discharge and characterization of service granted.

8.  The applicant further contends he was discharged for misconduct despite his PTSD diagnosis.  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.  

9.  The applicant also contends his discharge severely limits his employability.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

10.  The applicant additionally contends the Army failed to recognize, accept and properly address that his PTSD was a major cause of the misconduct that led to his separation.  The service record contains no evidence of an in-service PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

11.  Moreover, the applicant contends he is working hard to stay clean and sober.  The applicant is to be commended for his efforts.  However, this contention 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.  

12.  The applicant desires to receive VA benefits for healthcare.  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.

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

14.  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.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails restoration of grade to SPC/E-4

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date:  27 January 2014   Location:  Washington, DC

Did the Applicant Testify:  Yes

Counsel:  yes [redacted]

Witnesses/Observers:  Yes, mother.

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

     a.  Resume – 1 page

     b.  Academic Report – Transcripts – 9 pages  

2.  The applicant presented no additional contentions.

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:	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






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)		AR20130011971



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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