IN THE CASE OF:  	Mr. 

      BOARD DATE:  	1 July 2014

      CASE NUMBER:  	AR20130015744
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4.  In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations.  




      
      
      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 general, under honorable conditions or honorable.

2.  The applicant states, in effect, his discharge was improper because his unit understood his medical conditions from a prior period of service.  His was diagnosis with Post Traumatic Stress Disorder (PTSD) and depression affected his mind and body; however it did not affect his duty performance as shown from his previous awards.  After three deployments and a failed marriage his life became unbearable; these issues caused increased drinking.  His unit used him and never supported his request for assistance.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 August 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			9 March 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-4
e. Unit of assignment:			B Company, 4-31st Infantry Regiment, 2nd Brigade 						Combat Team, Fort Drum, NY
f. Current Enlistment Date/Term:	8 July 2008, 3 years and 2 weeks
g. Current Enlistment Service:	2 years, 8 months, 2 days
h. Total Service:			10 years, 7 months, 9 days
i. Lost time:				None
j. Previous Discharges:		RA (000801-040731)/HD										USARCG (040801-070629/NA									USAR/OAD (070630-080707)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92Y10, Unit Supply Specialist
m. GT Score:				88
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (091015-100628), Kuwait/Iraq (060721-070715, 						030128-030601, prior service)
q. Decorations/Awards:		ARCOM, AAM-2, AGCM, NDSM, ICM-W/ CS 							GWOTEM, GWOTSM, AFRM-W/”M” DEV, ASR, 						OSR, MUC
r. Administrative Separation Board:	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No




SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 1 August 2000, for a period of 4 years.  He was 18 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 92Y10, Unit Supply Specialist.  He was discharged on 31 July 2004 with an honorable characterization of service and transferred to the US Army Reserve Control Group.  He enlisted in the US Army Reserve on 30 June 2007, for a period of 3 years and he was 25 years old at the time of entry.  He was ordered to active duty 30 June 2007 and was honorably discharged on 7 August 2008.  His last enlistment on    8 July 2008 was for 3 years and 2 weeks and he was 26 years old at the time.  His record shows he served three combat tours, he earned several awards including an ARCOM, AAM-2, AGCM, and an AFRM-W/”M” DEV; he achieved the rank of SPC/E-4.  He was serving at Fort Drum, NY when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 26 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 of misconduct (serious offense).  Specifically for the following offenses:

     a.  being apprehended for driving while intoxicated x 2 (100609, 100906),

     b.  attempting to wrongfully possess cocaine,

     c.  conspiring to commit two offenses in violation of the Uniform Code of Military Justice (UCMJ),

     d.  making a false official statement, and

     e.  unlawfully committing an assault.

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 4 November 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than general, under honorable conditions, and indicated he intended to submit a statement on his behalf which is contained in the available records.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.



4.  On 3 February 2011, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, voluntarily unconditionally waived consideration of his case by an administrative separation board, submitted a statement on his behalf and requested five business days to submit additional materials on his behalf.

5.  On 15 February 2011, 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 9 March 2011, 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. 

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.  An Article 15, dated 14 October 2010, for driving while intoxicated x 2 (100709, 100906); the punishment consisted of reduction to E-1, forfeiture of $723 pay, extra duty for 45 days, restriction for 45 days and an oral reprimand, (FG).

2.  Two Military Police Reports, dated 6 September 2010 and 12 July 2010 indicated the applicant was under investigation for aggravated unlicensed operation of a motor vehicle (1st degree) off post and driving while intoxicated off post.

3.  The applicant received a monthly counseling statement, dated 2 September 2006.

4.  Two memoranda, suspension of installation driving privileges, dated 5 September 2010 and 9 July 2010 indicated the applicant’s driving privileges was suspended for 5 years and 24 months respectively.

5.  A Watertown Police Department uniform traffic ticket, dated 4 September 2010 indicated the applicant was charged with driving while intoxicated, aggravated unlicensed operation of a vehicle, and operating a vehicle while registration suspended/revoked.

6.  Special Court-Martial Order Number 15, adjudged on 13 July 2009 shows the applicant wrongfully possessed cocaine (081207); the applicant conspired to possess cocaine by giving PV2 R.S.E. thirty dollars to purchase cocaine (081207); and unlawfully striking PV2 R.S.E. in the face with a closed fist (081207).  The applicant was sentenced to reduction to E-1 and confinement for 6 months.

7.  A DD Form 458 (Charge Sheet), dated 4 February 2009 revealed the applicant was charged with several violations under the Uniform Code of Military Justice (UCMJ).

8.  DA Form 3822-R (Report of Mental Status Evaluation), dated 22 September 2010, indicated the applicant was diagnosed with alcohol dependence, adjustment disorder with mixed anxiety and depressed mood.  There was no evidence of a cognitive disorder or severe mental disease or defect; he was psychiatrically cleared for any administrative action deemed appropriate by command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, three DD Forms 214, a DD Form 149, and Special Court-Martial Order Number 15 (three pages).

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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 issues and documents 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 (serious offense), the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15, two military police reports, two memoranda suspending his installation driving privileges, a Watertown Police Department traffic ticket, and a Special Court-Martial document.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends his discharge was improper because his unit understood his medical conditions from prior service. 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 this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.

5.  The applicant further contends his was diagnosis of PTSD and depression affected his mind and body; however it did not affect his duty performance as shown form his many previous awards.  The independent documents (Department of Veterans Affairs ) submitted with his application are acknowledged indicating that the applicant was diagnosed with PTSD, insomnia and depression and other mental issues which he was prescribed medications to treat these conditions. 

6.  However, the record does not contain any evidence of in-service diagnosis of PTSD as indicated in the independent documentation from the VA and the applicant did not submit any corroborating evidence of an in-service diagnosis of PTSD or any related mental issues indicating the discharge was the result of any medical condition.

7.  Also, 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 overcome the reason for discharge and the characterization of service granted.


8.  The applicant additionally contends after three deployments and a failed marriage his life became unbearable; these issues caused increased drinking.  While the applicant may believe his combat deployments, marital problems and drinking was the underlying cause of his misconduct that led to his discharge, the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.

9.  Moreover, the applicant contends his unit used him to accomplish missions and never supported his request for assistance.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

10.  Finally, 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.

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

12.  Furthermore, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  In view of the foregoing and notwithstanding the propriety of the discharge, the analyst recommends the Board administratively change block 27, reentry code to 3, as approved by the separation authority.

13.  Except for the modification as stated above the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  1 July 2014         Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  No

Witnesses/Observers:  NA

Board Vote:
Character  	Change:  2	No Change:  3
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:  	NA
Change Reason to:  		NA
Change Authority for Separation:	NA
Change RE Code to:  		3
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)		AR20130015744



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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