IN THE CASE OF:	Mr. 

      BOARD DATE	9 April 2014

      CASE NUMBER:	AR20130012908
___________________________________________________________________________

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

2.  The applicant states, in effect, his initial counseling for separation was under the terms of AR 635-200, Chapter 5-13/5-17 with an honorable characterization of service for suicidal ideations and depression.  It was explained to him that he met the qualifications of this separation; however, he was ultimately separated under far more egregious terms.  He believes the basis for his separation were adversely effected by the complaints he submitted against his section leadership for allowing and encouraging a toxic work environment fraught with “Islamophobic” rhetoric and an unwarranted invasion into his private affairs.  He filed complaints with the Office of the Inspector General and Equal Opportunity with regards to anti-Islamic comments made by his superior and subordinates within his chain of command that were not corrected even after candidly addressing matters with superiors.  The entire section also gained access to his private correspondences over the internet while on deployment to Iraq at the request of an NCO within his chain of command to CID. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	13 April 2011
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	HHC, 2nd Heavy BCT, 3rd Infantry Division, Fort 
			Stewart, GA
	f.	Current Enlistment Date/Term:	4 September 2008, 3 years
	g.	Current Enlistment Service:	2 years, 7 months, 10 days
	h.	Total Service:	2 years, 7 months, 10 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	27D10, Paralegal Specialist
	m.	GT Score:	117
	n.	Education:	Bachelor’s Degree
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (091104-101022)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR
	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 4 September 2008, for a period of 3 years.  He was 23 years old at the time of entry and had a bachelor’s degree.  He was trained in and awarded military occupational specialty (MOS) 27D10, Paralegal Specialist.  He served in Iraq.  He earned an ARCOM.  He completed 2 years, 7 months, and 10 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that in an undated memorandum, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct (serious offense), specifically for: 

	a.	failing to go at the time prescribed to his appointed place of duty on several occasions (091128, 100626, 100629, and 100927);
	b.	disrespecting an NCO on several occasions (100123, 100619, and 100927); 
	c.	receiving a summarized Article 15 for the above offenses; and
	d.	disrespecting a commissioned officer (100927).

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

3.  In an undated memorandum, the applicant responded that he had consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 4 April 2011, 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 13 April 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA 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.  Summarized Article 15, dated 13 October 2010, for failing to be at his appointed place of duty at the prescribed time on four occasions (091128, 100626, 100629, and 100927); being disrespectful in language toward an NCO (100123); and being disrespectful in deportment toward an NCO on two separate occasions (100619 and 100927).  The punishment consisted of 14 days of extra duty and restriction, (CG). 

2.  Numerous negative counseling statements, dated between 28 November 2009 and 16 March 2011, for intending to initiate a separation proceedings IAW AR 635-200, Chapter 5, paragraph 5-13 or 5-17, but depending on the mental health status evaluation results; being medically evacuated from theatre due to mental health provider’s recommendations; being disrespectful and disobedient; failing to be at his appointed place of duty at the prescribed time; and lacking discipline.

3.  Report of Behavioral Health Evaluation, dated in 2011, indicates the applicant was diagnosed with AXIS I: 799.9 Dx Deferred, and was psychiatrically cleared for any administrative action deemed appropriate by command.

4.  DD Form 2808, Report of Medical Examination, dated 22 March 2011, determined that he was qualified for service.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 214 for the service under current review; his self-authored statement on his behalf for his separation proceedings, dated 1 April 2011; five counseling statements, dated 17 December 2010, 16 March 2011, 10 March 2011 x 2, 17 March 2011, and 7 February 2011; record of emergency medical care, dated 16 March 2011; undated handwritten note; and letter to a Member of Congress, dated 25 May 2011.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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, 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 pattern of 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 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 initial counseling for separation was under the terms of AR 635-200, Chapter 5-13/5-17 with an honorable characterization of service for suicidal ideations and depression, and although it was explained to him that he met the qualifications of this separation, he was ultimately separated under far more egregious terms and feels that his current discharge may have been the result of the IG and EO complaints he submitted against his section leadership.  However, the current Army Regulation, AR 635-200, paragraph 5-13, limits the separation of Soldiers for the reason of personality disorder to those who have less than 24 months of active duty service, as of the date the separation proceedings are initiated.  The record shows that the applicant had over 24 months of active duty service at the time of notification, had been deployed to Iraq, and had several incidents of misconduct.  Further, separation under provisions of AR 635-200, Chapter 5, paragraph 5-17, by reason of other physical or mental condition not amounting to a disability, stipulates that a Soldier may be separated for other physical or mental conditions not amounting to a disability, which interferes with assignment to or performance of duty and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired.  As it relates to personality disorder, it provides that Soldiers with 24 months or more of active duty service may be separated under paragraph 5-17 based on a diagnosis of personality disorder, if that is the condition the applicant is referring to because there is not record that clearly provides any diagnosis of the applicant having a mental health condition. 

5.  Furthermore, regarding the applicant’s contentions that medical issues contributed to his discharge from the Army, the service record does not support his contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  The record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  In fact, a DD Form 2808, Report of Medical Examination, determined that although the applicant may be suffering from a list of medical conditions (at item 77, summary of defects and diagnoses); he was ultimately found qualified for service.

6.  The applicant contends that he was harrassed and discriminated by members of his chain of command; however, 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.  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.  

7.  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.  

8.  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:  Records Review       Date:  9 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
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)		AR20130012908

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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