IN THE CASE OF:	Mr. 

      BOARD DATE:	13 March 2014

      CASE NUMBER:	AR20130017548
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and considering the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service and the circumstances surrounding his discharge (completion of full term), and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  The Board further determined the reason for discharge was both 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, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, he was supposed to be medically discharged five months prior to his ETS after returning from a deployment.  However, he went AWOL to seek better treatment off-post, but received no help so he returned and fulfilled the time he owed until his ETS.  The DD Form 214 he received is supposed to state an honorable discharge, which he never signed.  The worksheet copy that he enclosed shows the date he was to ETS before the adjusted ETS date based on the AWOL period and time owed.  A month after his discharge, he received a right knee arthroscopic surgery in June.  He adds his request for an upgrade is for the simple fact that he was injured during the last few months of his service, and his military service contract had expired, the day he was discharged.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	23 September 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	2 May 2013
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	561st MP Co, 716th MP Bn, 101st Sustainment 
			Bde, Fort Campbell, KY 
	f.	Current Enlistment Date/Term:	7 April 2010, 3 years
	g.	Current Enlistment Service:	3 years, 0 months, 1 day
	h.	Total Service:	5 years, 0 months, 20 days
	i.	Time Lost:	27 days
	j.	Previous Discharges:	RA (080318-100406) / HD 
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	31B10, Military Police
	m.	GT Score:	106
	n.	Education:	Associate Degree
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Afghanistan (110914-120706)
	q.	Decorations/Awards:	ARCOM; AGCM; NDSM; ACM-CS; GWOTSM; 
			ASR; OSR-2; NATO MDL
	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 18 March 2008, and reenlisted on 7 April 2010, for a period of 3 years.  He was 24 years old at the time of entry and had an associate’s degree.  He served in Germany and Afghanistan.  He earned an ARCOM.  He completed 5 years, 0 months, and 20 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 20 March 2013, 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, specifically for the following offenses:  

	a.	being AWOL (121221-130116) and
	b.	failing to be at his appointed place of duty (121108, 121030, and 121025).

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 3 April 2013, the applicant 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 19 April 2013, 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 2 May 2013, 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 record shows he was absent without leave (AWOL) during the period 21 December 2012 through 15 January 2013.  He voluntarily returned to his unit on 16 January 2013.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Orders 112-0617, dated 22 April 2013, indicates the applicant’s discharge date of 2 May 2013.

2.  Orders 071-0605, dated 12 March 2013, indicates the applicant’s release from active duty was on his ETS date of 6 April 2013, followed by orders 077-0643, dated 18 March 2013, amending his discharge rank from E-4 to E-2, and orders 094-0614, dated 4 April 2013, revoking orders 071-0605.

3.  Article 15, dated 8 March 2013, for being AWOL (121221-130116).  The punishment consisted of reduction to the grade of E-2, forfeiture of $425 per month for two months (suspended), 30 days of extra duty, (FG).  

4.  DA Form 3822, Report of Mental Status Evaluation, dated 23 January 2013, indicates diagnosis no behavioral health issues, but for a right knee.  

5.  Memorandum for Record, dated 16 January 2013, subject: [the applicant’s] AWOL Timeline was provided by the unit commander.

6.  DA Form 4187, Personnel Action, dated 16 January 2013, indicates the applicant’s duty status changed from AWOL to PDY (130116).

7.  DA Form 4187, Personnel Action, dated 21 December 2012, indicates the applicant’s duty status changed from PDY to AWOL (121221).

8.  A Memorandum of Reprimand, dated 14 November 2012, for failing to obey order or regulation, and failing to be at his appointed place of duty on numerous occasions.

9.  Eight negative counseling statements, dated between 28 October 2012 and 12 March 2013, for being AWOL; receiving an LOR for missing several appointments; failing to be at his appointment place of duty at the prescribed time; failing to arrive to formations on time; missing his orthopedic appointment; and debt owed to the Government due to his AWOL.

10.  Standard Form 600, Health Record, dated 3 December 2012, provides information regarding the applicant’s medical issue of right knee patellofemoral chondromalacia.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a voluminous copy of his medical records, dated from 22 August 2011 through 17 June 2013; discharge orders, dated 22 April 2013; DA Form 1506, Statement of Service, dated 4 April 2013; DD Form 214WS (Worksheet) with separation date of 6 April 2013; and VA correspondence, dated 19 July 2013, certifying the applicant’s discharge.  On 5 March 2014, this office received the following additional evidence from the applicant: letter, dated 12 December 2013, verifying his enrollment in an automotive/diesel institute with three certificates of attendance; medical records, dated 31 December 2013; enlistment/reenlistment contract; Standard Form 312, Classified Information Nondisclosure Agreement, dated 2 January 2008; and varied contents of his separation packet.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he received an arthroscopic right knee surgery in June 2013, a month after he was discharged. 



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, 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.  

2.  After examining the applicant’s record of service, his military records, and the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to honorable for the following reasons:  

	a.	Length and quality of service:  The applicant served a total of 5 years and 20 days, which entailed the applicant serving 3 years and 1 days of his 3-year reenlistment, and 2 years and 19 days of his initial enlistment; thus, the preponderance of his service was honorable. 

	b.	The record confirms the applicant received an ARCOM and served a tour in combat.

	c.	The applicant’s medical records confirm his medical issues with his right knee as early as August 2011 and subsequently receiving an arthroscopic surgery in June 2013, a month after his discharge.

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4. The applicant contends his medical issue involved an injury he received the last few months of his service that led to seeking better treatment off-post and upon receiving no help, he returned to his unit to complete his service obligation.  The circumstances and events surrounding the applicant’s medical issues are shown by the documents in his service records and the medical record provided with the application.

5.  The applicant contends he should have been medically discharged; however, 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, it is his 25-day AWOL.  Moreover, a DD Form 2808, Report of Medical Examination, dated 24 January 2013, determined that although the applicant was suffering from knee pain, ultimately found him qualified for service.  

6.  The applicant also requested a change to the reason for his discharge.  However, the applicant’s discharge was directed under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army regulations for a discharge under this paragraph is "Pattern of Misconduct,” and the separation code is "JKA."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

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.  

8.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date: 13 March 2013     Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Good Conduct Letter – 1 page
	b.  School Performance and Attitude records – 7 pages
	c.  Previous Medical Documents – 100 pages

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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)		AR20130017548

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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