IN THE CASE OF:  	

      BOARD DATE:  	1 November 2013

      CASE NUMBER:  	AR20130013126
___________________________________________________________________________

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 discharge from under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to receive his GI Bill benefits.  He contends he served 16 months in Afghanistan where he lost many friends and laid down his life for his country.  Since his release from active duty he has problems with coping with PTSD.  He has been unsuccessful at holding a steady job and interacting with people on a day to day basis.  He believes he should have been allowed the chance to seek medical and mental help with the VA to deal with his problems.  For the past few years he has been from place to place.  He has not received any help from anyone and is asking for an upgrade of his discharge so he may seek help before he is completely living on rock bottom. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 July 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			16 November 2010
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			549th MP Co, 385th MP Bn, Fort Stewart, GA
f. Current Enlistment Date/Term:	25 June 2007, 3 years and 24 weeks
g. Current Enlistment Service:	2 years, 10 months, 7 days
h. Total Service:			2 years, 10 months, 7 days
i. Time Lost:				197 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
m. GT Score:				92
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (080415-090712)
q. Decorations/Awards:		ACM-w/CS, NDSM, GWOTSM, ASR, OSR 							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 25 June 2007, for a period of 3 years and        24 weeks.  He was 18 years old at the time of entry and had a high school equivalency (GED).  His records indicates he serve in Iraq; however it does not document any acts of valor or significant achievement.  He was serving at Fort Stewart, GA when his discharge was initiated. He completed 2 years, 10 months, and 7 days of total active service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record contains an Offer to Plead Guilty letter, dated 15 October 2010, which was signed by the applicant indicating, having examined the charges and specification against him accepted trial by SCM; pleaded guilty to the charges and the specification; and waived his rights to an administrative separation board with the understanding that he would be discharged under other than honorable conditions.  In exchange for his action the SCM convening authority agrees to refer his case to a SCM.

2.  The evidence contained in the applicant’s service record indicates that on 20 October 2010, 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 the following offenses:

a. failing to obey and disrespecting a noncommissioned officer 

b. being found guilty by SCM of going AWOL x 4 (090921-091001, 100203-100303, 100427-100428, and 100519-101014)

c. larceny of a television which was military property

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

4.  On 20 October 2010, the applicant consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board, 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 commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

5.  On 8 November 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

6.  The applicant was discharged from the Army on 16 November 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

7.  The applicant’s record of service indicates 197days of time lost; 10 days for being AWOL from 21 September 2009 until his return on 1 October 2009; 28 days for being AWOL from      3 February 2010 until he was confined by civil authorities 3 March 2010; 10 days for being confined by civil authorities from 3 March 2010 until he returned to duty on 12 March 2010;      1 day for being AWOL 27 April 2010 until his return on 28 April 2010; 148 days for being AWOL from 19 May 2010 until he was confined by civil authorities 13 October 2010; and 1 day for being confined by civil authorities 13 October 2010 until he returned to duty on 15 October 2010.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 30 November 2009, for going AWOL (090921-091001).  The punishment consisted of reduction to the grade of E-2 and forfeiture of $366.00 pay per month for one month (suspended), extra duty for 14 days, and restriction for 14 days (CG).

2.  An MP Report dated 4 February 2010, that indicates the applicant was the subject of an investigation for larceny of government property. 

3.  SCM, dated 15 October 2010, for going AWOL x 4 (090921-091001, 100203-100303, 100427-100428, and 100519-101014) and larceny of military property of value greater than $500.00.  Punishment consisted of reduction to the grade of E-1, forfeiture of $1,282.00 pay for one month, and confinement for 30 days. 

4.  Seventeen negative counseling statements dated between 9 December 2009 and 23 March 2010, for failure to obey direct order from a noncommissioned officer, not paying his bills, failing to be at his appointed place of duty, disrespecting a noncommissioned officer, notification of no contact order, revocation of pass privileges for going AWOL, suspicion of larceny of government property, drugs being found in his room, and notification of separation and bar to reenlistment.

5.  A MEDCOM Form 699-R, Mental Status Evaluation, dated 17 March 2010 in which the applicant was diagnosed with Axis I, Adjustment Disorder with anxiety and depressed mood, Cannabis Abuse (by history).  Remarks paragraph 1 states, in part, "(he) completed scales for PTSD and TBI.  The SM did not indicate that we was experiencing any symptoms of PTSD or TBI."  The observing provider, Ms. D, a Licensed Clinical Social Worker found no psychiatric disease or defect that warrants disposition through medical channels.  The provider also found the applicant had the mental capacity to understand and participate in the proceedings against him.

6.  Three DA Form 4187's dated 03 March 2010, 13 October 2010 and 15 October
2010 changing his duty status to confined by civil authorities.

7.  A notification memorandum stating the unit commander's intent to separate him under the provisions of Chapter 14-12C for serious misconduct including his failure to obey and respect non-commissioned officers, a Summary Court-Martial conviction for violating Article 86 of the UCMJ, and larceny of military property. 

8.  A copy of his Charge Sheet, dated 15 October 2010, for the offenses of going AWOL x 4 and stealing a television of a value greater than $500.00, the property of the United States Military.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None were 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.

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 his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by a SCM and an Article 15 for multiple violations of the Uniform Code of Military Justice and 17 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 that he had good service which included 16 months in Afghanistan. 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 actions under the Uniform Code of Military Justice.

5.  The applicant also contends that since his release from active duty he's had problems with coping with PTSD and has been unsuccessful at holding a steady job and interacting with people on a day to day basis.  He believes he should have been allowed the chance to seek medical and mental help with the VA to deal with his problems.  However, the record shows that on 17 March 2010, the applicant underwent a mental status evaluation which indicates he did not indicate that he was experiencing any symptoms of PTSD or TBI and that the applicant was cleared for any administrative actions deemed appropriated by his command, such as separation under Chapter 14-12, AR 635-200.  The service record contains no evidence of PTDS diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

6.  The applicant has expressed his desire for an upgrade of his discharge for the purpose of being able to receive his GI Bill benefits.  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.

7.  Furthermore, the applicant contends that for the past few years he has been from place to place.  He has not received any help from anyone and is asking for an upgrade of his discharge so he may seek help before he is completely living on rock bottom.  The applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance.

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

9.  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:  1 November 2013   Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		No Change
Change RE Code to:			No Change
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)		AR20130013126



Page 2 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1