IN THE CASE OF:	Mr. 

      BOARD DATE:	9 April 2014

      CASE NUMBER:	AR20130012443
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge as the applicant was on medication during the period of his misconduct and based on the applicant’s quality of his service to include his combat service, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions.

2.  The applicant states, in effect, the justifying reasons for his request is to qualify for VA benefits, self-satisfaction, and that majority of his service was meritorious.  His discharge was also inequitable and improper, and legal errors were made by his command.  The applicant’s self-authored statement, in pertinent part and in effect, adds that he still suffers from multiple mental illnesses that was confirmed by civilian doctors while he was on active duty.  He realizes his AWOL is unacceptable and conduct unbecoming of any Soldier; however, he has reasons that are stated in the attached VA letter, which also explains his situation.  He believes certain events, which led him to receive a UOTH discharge rather than a desirable discharge, were incorrect and misreported.  His service to his nation was excellent and merit before and during his service in Iraq.  When he returned from Iraq, he started having mental and behavioral issues.  He detailed the circumstances and events surrounding the reasons for claiming that his discharge was equitable, and included three previous ADRB cases as basis that his discharge should be corrected.  He adds that one of the cases involved a Soldier being AWOL for 205 days and received a desirable discharge.  He also detailed the circumstances and events surrounding the reasons for claiming that his discharge was improper.  He concludes that his service does not merit a UOTH considering the problems that led to his discharge were created after he returned from Iraq.  The problems were partially and greatly due to mental illnesses, family and financial problems, and emergencies.   

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 July 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	18 October 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (AWOL), AR 635-200, Paragraph 14-
			12c(1), JKD, RE-4
	e.	Unit of assignment:	A Co, 2nd Bn, 12th FA Regiment, 4th Bde (SBCT) 
			2nd ID, Joint Base Lewis-McChord, WA  
	f.	Current Enlistment Date/Term:	4 November 2008, 5 years, 21 weeks
	g.	Current Enlistment Service:	2 years, 7 months, 17 days
	h.	Total Service:	2 years, 7 months, 17 days
	i.	Time Lost:	122 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	13B10, Cannon Crewmember
	m.	GT Score:	104
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090912-100817)
	q.	Decorations/Awards:	ARCOM; ICM-CS; GWOTSM; ASR; OSR; MUC
	r.	Administrative Separation Board: 	No, voluntarily waived
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 4 November 2008, for a period of 5 years and 21 weeks.  He was 19 years old and had a high school equivalency (GED).  He served in Iraq.  He earned an ARCOM.  He completed 2 years, 7 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 1 September 2011, 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 misconduct (serious offense), specifically for:

	a.	being AWOL on multiple occasions between April 2011 and June 2011; 
	b.	writing numerous bad checks between (01 June 2011-10 June 2011); and 
	c.	failing to report to his appointed place of duty at the prescribed time on multiple occasions.

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

3.  On 14 September 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and elected not to 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 an under other than honorable conditions discharge.  

4.  On 6 October 2011, the General Court-Martial Convening Authority directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 18 October 2011, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(1), AR 635-200, for misconduct (AWOL), a Separation Program Designator code (SPD) of JKD and an RE code of 4. 

6.  The applicant's record shows he accrued 122 days of time lost due to being absent without leave (AWOL) on numerous occasions and the latter period was for military confinement:

	a.	26 April 2011 through 12 June 2011, for a period of 48 days;
	b.	14 June 2011 through 22 June 2011, for a period of 9 days;
	c.	24 June 2011 through 28 June 2011, for a period of 6 days;
	d.	30 June 2011 through 24 August 2011, for a period of 57 days (records indicate he was apprehended by civil authorities and returned to military control; and
	e.	29 August 2011 through 30 August 2011, for a period of 2 days.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 18 April 2011, for failing to be at his appointed place of duty (110325), disobeying a commissioned officer (110308), and making false official statement (110325).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733 per month for two months, 45 days of extra duty and restriction, (FG). 

2.  Eighteen negative counseling statements, dated between 1 June 2009 and 23 June 2011, for being recommended for involuntary separation; being AWOL; missing movement; disobeying a superior commissioned officer; making, drawing or uttering checks without sufficient funds; informing him of his responsibility to properly manage funds/financial affairs and possible consequences for continued nonpayment; failing to be at his appointed place of duty; violating UCMJ restriction and no-contact order; falling asleep on duty; failing to inform his NCO; declining in his physical training; failing to report for extra duty; violation of quarters; having a pattern of misconduct; failing to conduct physical readiness training; lying to NCOs; work performance being substandard; being involved in domestic violence; being convicted by a civil court; being rehabilitatively transferred to another platoon; being corrected and counseled numerous times; being arrested by civil authorities for assault and domestic violence; actions leading up to his arrest and being confined by civil authorities; violating UCMJ punishment and corrective training; and missing movement.

3.  DD Form 458, Charge Sheet, indicates on 24 May 2011, two AWOL charges were preferred for period (110426-110527), and the other charge is similar to the first charge.  

4.  DA Forms 4187, Personnel Actions, indicate the applicant’s change of duty status from PDY to AWOL (110426), AWOL to DFR (110527), and DFR to PDY (110613).

5.  DA Forms 4187, Personnel Actions, indicate the applicant’s change of duty status from PDY to AWOL (110614) and AWOL to PDY (110623).

6.  DA Forms 4187, Personnel Actions, indicate the applicant’s change of duty status from PDY to AWOL (1100624) and AWOL to PDY (110629).

7.  DA Forms 4187, Personnel Actions, indicate the applicant’s change of duty status from PDY to AWOL (110630) and DFR to PDY (110825).

8.  DD Form 616, Report of Return of Absentee, dated 30 August 2011, indicates the applicant was apprehended by civil authorities on 29 August 2011.

9.  DA Forms 4187, Personnel Actions, indicates the applicant’s change of duty status from PDY to military confinement (110829) and military confinement to PDY (110831).

10.  County court documents involving the applicant consist of the following: On 15 February 2011, a Declaration of Victim Requesting No Contact Order Be Quashed and Order On Request, was submitted by the applicant’s spouse; Stipulated Order of Continuance with Conditions (SOC), dated in February 2011; Complaint filed on 3 January 2011; Statement of Defendant on Plea of Guilty for violating a no-contact order, dated 5 May 2011; 2nd Complaint filed on 10 March 2011; court order, dated 11 March 2011; and two separate handwritten statement forms, dated 1 July 2011, submitted by the applicant and his spouse.  

11.  Memorandum for the applicant, dated 1 March 2011, subject: Family Advocacy Case Review Committee (CRD Incident Determination is self-explanatory and memorandum of agreement to treatment plan, dated 15 February 2011.

12.  Report of Mental Status Evaluation, dated 30 August 2011, indicates, in pertinent part, that although the applicant reported sustaining a concussion during his deployment in Iraq, the evaluation through TBI clinic determined his “symptoms were not congruent with index trauma as etiology,” no follow-up was necessary, and he did not present full diagnostic criteria for PTSD.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his self-authored statement, three previous ADRB cases not related to his current case (AR20120004110, AR20110024131, and AR20120010632); DA Form 1103, Application for AER Financial Assistance, dated 28 December 2010, with interview checklist; Notice of Disagreement with VA decision, undated; two counseling statements, dated 30 April 2010 and 30 May 2010; self-authored statement, dated 14 May 2012, addressed to VA; two handwritten statement forms, dated 1 July 2011; documents indicating copied from VA folder, dated 20 April 2011 and 5 April 2011; CMD letter, dated 17 June 2013.

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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 "JKD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c(1), misconduct (AWOL).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKD" 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 documents and 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 serious incidents of misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 action for multiple violations of the Uniform Code of Military Justice and numerous 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 his discharge was inequitable and improper, and legal errors were made by his command and certain events, which led him to receive a UOTH discharge rather than a desirable discharge, were incorrect and misreported.  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 his issues.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s Article 15 and numerous negative counseling statements justify a pattern of serious incidents of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

5.  The applicant contends he suffers from multiple mental illnesses, and when he returned from Iraq, he started having mental and behavioral issues.  The applicant’s service record contains documentation that indicates the applicant was evaluated for TBI due to his claim of sustaining a concussion during his deployment in Iraq and it was determined at that time that his symptoms were not congruent with index trauma as etiology, and the Soldier did not present full diagnostic criteria for PTSD.  The report of his medical history (DA Form 2807-1) indicates a diagnosis of adjustment disorder with depressed mood.  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 on 30 August 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he was suffering from mental health issues, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

6.  The applicant contends that he was having family and financial issues that affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is insufficient evidence in the record that he sought such assistance before committing the misconduct which led to the separation action under review, specifically numerous periods of being AWOL.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

7.  The applicant contends that majority of his service was meritorious, specifically before and during his service in Iraq.  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 repeated incidents of misconduct or by the multiple negative counseling statements and the documented action under an Article 15 of the Uniform Code of Military Justice.

8.  The applicant has expressed his desire for VA benefits.  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 applicant contends that other Soldiers with similar offenses were provided desirable discharges.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

10.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

11.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

BOARD DETERMINATION AND DIRECTED ACTION

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the preceding Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge as the applicant was on medication during the period of his misconduct and based on the applicant’s quality of his service to include his combat service, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  9 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  3	No Change:  2
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:		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)		AR20130012443

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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