IN THE CASE OF:	Mr. 

      BOARD DATE:	16 April 2014

      CASE NUMBER:	AR20130013548
___________________________________________________________________________

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 applicant’s length and quality of his service to include his combat service, and the circumstances surrounding his discharge that indicates his medical condition contributed to the misconduct 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 honorable.  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 general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, he believes his discharge is improper discharge because he served in the Army for over 12 years and deployed to Operation Iraqi Freedom, and received Army Commendation Medals for his service. He had a medical issue (Epilepsy) that prevented him from driving for a period of 12 months in accordance with state law, and due to that issue, he missed formations on more than one occasion.  Currently, he is a student studying criminal justice and is on his last year toward obtaining a bachelor’s degree.  An upgrade would one day allow him to serve his nation once more.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	23 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	3 May 2011
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	611th Seaport Operations Company, 7th Special 				Troops Bn (R)(P), Joint Base Langley-Eustis, VA  
	f.	Current Enlistment Date/Term:	10 March 2006, 6 years
	g.	Current Enlistment Service:	5 years, 1 month, 24 days
	h.	Total Service:	12 years, 6 months, 7 days 
	i.	Time Lost:	None
	j.	Previous Discharges:	RA       (981027-010806) / HD
			RA       (010807-031220) / HD
			USAR  (031221-040927) / NA
			RA       (040928-060309) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	88H10, Cargo Specialist
	m.	GT Score:	97
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (071006-080220)
	q.	Decorations/Awards:	ARCOM-2; AAM-2; AGCM-2; NDSM; ICM-CS 
			GWOTSM; ASR
	r.	Administrative Separation Board: 	No, waived
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No 


SUMMARY OF SERVICE:  

The applicant previously served on active duty from 27 October 1998 through 20 December 2003, and was transferred to the USAR CON GP (REINF) to fulfill the 8-year military service obligation.  He then enlisted in the Regular Army on 28 September 2004, and reenlisted on 10 March 2006, for a period of 6 years.  He was 27 years old at the time of his second entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 88H10, Cargo Specialist.  He served in Iraq.  He earned two ARCOM and two AAM awards.  He completed 12 years, 6 months, and 7 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 7 December 2010, 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 a pattern of misconduct, specifically for the following incidents:

	a.	receiving a CG Article 15 (101018), for failing to report on three separate occasions, and
	b.	receiving a FG Article (090929), for failing to report on five separate occasions.

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

3.  On 7 April 2011, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action and voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his 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 of the separation with a general, under honorable conditions discharge.  

4.  On 19 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 3 May 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. 



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Memorandum, dated 19 October 2010, subject: Article 15 proceedings [the applicant], was rendered by the applicant’s defense counsel, which details the circumstances and events surrounding the applicant suffering a serious medical condition that prevented him from driving a vehicle on or off-post and the subsequent missing formations.

2.  Article 15, dated 21 October 2010, for failing to go to his appointed place of duty at the prescribed time on three occasions (100616, 100512, and 100514).  The punishment consisted of reduction to the grade of E-3 (suspended) and 14 days of extra duty, (CG).

3.  Article 15, dated 29 September 2009, for being AWOL (090804-090908) and failing to go to his appointed place of duty at the prescribed time on three occasions (090713, 090707, and 090702).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,109, and 45 days of extra duty, (FG). 

4.  Numerous negative counseling statements, dated between 13 July 2009 and 27 October 2010, for failing to go to his appointed place of duty at the prescribed time; pattern of misconduct; failing to inform his chain of command of his whereabouts; being AWOL; being recommended for separation; submitting a false official statement; and lack of communication, discipline, initiative, and motivation.

5.  DA Form 4187, Personnel Action, dated 4 August 2009, indicates the applicant’s status changed from PDY to AWOL, effective 4 August 2009, 0630 hours. 

6.  DD Form 458, Charge Sheet, indicates the applicant was charged with desertion (090804-[left blank] and AWOL (090804-[left blank], and the charges were preferred on 2 September 2009.  

7.  DA Form 4187, Personnel Action, dated 4 September 2009, indicates the applicant’s status changed from AWOL to DFR, effective 4 September 2009, 0630 hours

8.  DD Form 2807-1, Report of Medical History, dated 20 December 2010, indicates the applicant had seizures, which was being treated with medication.

9.  DD Form 2808, Report of Medical Examination, undated, indicates the applicant was determined not qualified for service and had a seizure disorder that was controlled by medication.

10.  Memorandum, dated 22 January 2010, subject: Physician’s Statement of Medical Treatment provides a diagnosis, treatment, and prognosis.

11.  Health Record, dated 22 January 2010, provides a chronological record of medical care the applicant received.



12.  Four NCOERs covering the period:

	a.	31 March 2008 to 29 September 2009, a Change of Rater report.  The applicant was rated as “Marginal” and received 4/4 from the senior rater.
	b.	1 July 2007 to 1 October 2007, a Change of Rater report.  The applicant was rated as “Fully Capable” and the senior rater did not meet the minimal qualifications to rate.
	c.	1 October 2006 to 30 June 2007, a Change of Rater report.  The applicant was rated as “Fully Capable” and received 3/3 from the senior rater.
	d.	1 October 2005 to 30 September 2006, an Annual report.  The applicant was rated as “Fully Capable” and received 2/1 from the senior rater.

13.  DA Form 1059, Service School Academic Evaluation Report, dated 1 October 2008, indicates the applicant achieved the course standards in BNCOC. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he is studying criminal justice and in his last year to obtain a bachelor’s degree.   

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, 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 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 two Article 15 actions for 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 the discharge was improper because he served in the Army for 12 years, deployed to Operation Iraqi Freedom, and received Army Commendation Medal awards for his service.  The applicant’s service accomplishments during his 12 years of service 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 Article 15 of the Uniform Code of Military Justice.  Moreover, even a single incident constitutes discrediting entry and a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by even a single incident provides the basis for a characterization.  The applicant's repeated incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

5.  Although there are documented medical conditions the applicant suffered while on active duty that supports a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing, the available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  Moreover, 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, and in the applicant’s case, there are numerous incidents of misconduct.  

6.  The applicant contends that he is currently studying to obtain a bachelor’s degree.  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.  

7.  The applicant expressed a desire to one day rejoin the military service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There is no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.  

8.  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.  

9.  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 Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service, and the circumstances surrounding his discharge that indicates his medical condition contributed to the misconduct 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 honorable.  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:  16 April 2014         Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

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:	Honorable
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)		AR20130013548

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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