IN THE CASE OF:	Mr. 

      BOARD DATE:	14 May 2014

      CASE NUMBER:	AR20130014387
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s 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 both his immediate commanders had recommended him for a general, under honorable conditions discharge 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 or honorable.

2.  The applicant states, in effect, his discharge is inequitable because his TBI and PTSD were ignored.  An Article 15 punishment of reduction in rank and forfeiture was recommended but the GCMCA overruled it and he was discharged with a UOTH.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 August 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	7 May 2009
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	A Co, 2nd Bn, 69th Armor Regiment, 3rd BCT, 3rd 
			Infantry Division, Fort Benning, GA
	f.	Current Enlistment Date/Term:	28 March 2006, 5 years, 16 weeks
	g.	Current Enlistment Service:	3 years, 1 month, 10 days
	h.	Total Service:	3 years, 1 month, 10 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	108
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (070312-080521)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	No, 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 28 March 2006, for a period of 5 years and 16 weeks.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.    He served in Iraq.  He earned an ARCOM.  He completed 3 years, 1 month, and 10 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 24 March 2009, 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 for the following offenses:

	a.	assaulting a noncommissioned officer, SGT S (081120);
	b.	assaulting a noncommissioned officer, SSG K (081120); 
	c.	treating SSG K with contempt (081120);
	d.	being disrespectful in language towards SSG K (081120);
	e.	being disrespectful in language towards SGT S (081120);
	f.	intentionally exposing in an indecent manner his penis (081120); and
	g.	conducting himself in a nature to bring discredit upon the Armed Forces on two separation occasions (081120 and 070802).

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 24 March 2009, 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 indicated he would submit a statement on his behalf.  However, the applicant’s statement is not part of the available record.  The unit commander subsequently recommended separation from the Army with a general, under honorable conditions discharge and to suspend his separation for six months.  The intermediate commanders reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 29 April 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  He was reduced to the lowest enlisted grade.  

5.  The applicant was discharged from the Army on 7 May 2009, with a characterization of service of under other than 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.  Article 15, dated 6 August 2007, for wrongfully using cocaine (070303-070306).  The punishment consisted of reduction to the grade of E-1, forfeiture of $700 per month for two months, 45 days of extra duty and restriction, (FG).   

2.  Four negative counseling statements, dated between 10 May 2007 and 20 February 2009, for being recommended for involuntary separation; disrespecting an NCO; disobeying an order; assaulting two NCOs; hazing a fellow Soldier; drunk and disorderly conduct; endangering himself and others by wrongfully inhaling canned air with high concentration of vapor; wrongfully using cocaine; and disobeying an order.

3.  The unit commander’s forwarding memorandum, dated 24 March 2009, indicates the applicant was convicted by a summary court-martial (090327) and received a punishment of reduction to PV2/E-2, forfeiture of $500, and restriction for two months.  The information is not available in the applicant’s record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his application, DD Form 214 for the period of service under current review. 

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.

ANALYST’S 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.  Further, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By the pattern of misconduct and abusing illegal drugs, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation 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 is inequitable because his TBI and PTSD were ignored.  However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  Moreover, the record shows that on 18 February 2009, 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, and was psychiatrically cleared for any administrative actions deemed appropriate by his command.  Further, there are many Soldiers with the same condition that completed their service successfully.

5.  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.  

6.  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 both his immediate commanders had recommended him for a general, under honorable conditions discharge 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:  14 May 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)		AR20130014387

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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