IN THE CASE OF:  	Mr. 

      BOARD DATE:  	19 February 2014

      CASE NUMBER:  	AR20130012220
___________________________________________________________________________

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

2.  The applicant states, in effect, he was discriminated against by his chain of command for being of Arab descent.  He states he was diagnosed with Post Traumatic Stress Disorder (PTSD) and because of the verbal and mental abuse and racial discrimination he encountered on a daily basis, he was unable to bear the emotional stress and left his training assignment with a National Guard unit and returned to his home unit.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			27 June 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				8 June 2009
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200.
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				51st Translator Interpreter Company, 
Regimental Support Squadron, Fort Irwin, CA
f. Current Enlistment Date/Term:		1 December 2006/ 3 years
g. Current Enlistment Service:		2 years, 6 months, 8 days
h. Total Service:				3 years, 1 month, 4 days
i. Time Lost:					None
j. Previous Discharges:			RA, 060505-061130, HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		O9L, Translator Aide
m. GT Score:					81
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq, 070202-080626
q. Decorations/Awards:			ARCOM, NDSM, GWOTSM, ICM-CS, NOPDR,
ASR, OSR, AFRSM-M, CAB
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 1 December 2006 for a period of 3 years.  He was 22 years old at the time of entry and a high school graduate.  He served in Iraq earned an ARCOM and CAB.  He completed 3 years, 1 month, and 4 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Irwin, California.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 20 May 2009, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense).  Specifically for disobeying an NCO twice by refusing to go to a range and refusing to work as a translator.

2.  Based on the above misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 26 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in his own behalf.  The applicant’s counsel submitted matters in defense of the applicant’s administrative separation.  He requested the separation authority take into consideration the applicant’s entire service record to include his combat service when determining whether to retain him and if necessary the characterization of service.  He described his former battalion commander’s perception of the applicant’s work ethic and professionalism.  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 31 May 2009, the separation waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 8 June 2009, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.              

6.  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, dated 9 April 2009, for disobeying a lawful order x 2 (090315), failure to go to his appointed place of duty x 5 (090212, 090304, 090306x2, and 090316).  The punishment consisted of reduction to the grade of E-1, forfeiture of $700 pay per month for two months, 45 days of extra duty and restriction (FG).

2.  Five negative counseling statements dated between 12 February 2009 and 29 April 2009, for failure to be at prescribed place of duty at prescribed time, being absent without leave (AWOL) x 3, failure to obey an order or regulation, false official statements, and administrative separation counseling.
      

EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided a letter from his counsel dated 26 June 2013, a DD Form 149, dated 
6 June 2013, an undated self-authored statement addressing his contentions, a DA Form 2627 dated 9 April 2009, and two DD Forms 214.

2.  Three letters of support from CPL T, Mr. A, and SGT A, who stated, in effect, the applicant was a smart and motivated Soldier who suffered from PTSD and reacted to the racial discrimination that they all endured on a daily basis.

POST-SERVICE ACTIVITY: 

The applicant states he is employed as a federal contractor as an Arabic Linguist/Role Player.  He completed his bachelor’s degree, is currently working on his master’s degree in intelligence studies, joined the Virginia Republican Party as well as, the Arlington Republican Party, and volunteers for various campaigns. 

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 (serious offense).

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 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, 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 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 a FG Article 15 for multiple violations of the Uniform Code of Military Justice and five 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 diagnosed with PTSD which was aggravated by the daily verbal and mental abuse as well as racial discrimination by his chain of command.  However, the service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  Further, the applicant 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.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

5.  The applicant contends that since leaving the Army he has been employed as a federal contractor as an Arabic Linguist and Role Player, completed his bachelor’s degree and is currently working on a master’s degree in intelligence studies.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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

7.  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:  Record Review     Date:  19 February 2014      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  Yes [redacted]

Witnesses/Observers: NA

Board Vote:
Character Change:  1	No Change:  4
Reason Change:	1	No Change:  4
(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)		AR20130012220



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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