IN THE CASE OF:	Mr. 

      BOARD DATE:	9 June 2014

      CASE NUMBER:	AR20140002496
___________________________________________________________________________

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 notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge, lack of timely access to mental health treatment and care, and his combat service 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.  This action entails restoration of grade to E-2/PV2.




      
      
      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 honorable.

2.  The applicant states, in effect, he believes his discharge was inequitable, on the advice of a military counsel and his command while in Iraq.  He feels the onset of PTSD occurred during his service in Iraq and affected his performance as a scout—the underlying cause of his actions and behavior.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	4 February 2014
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	19 October 2006
	d.	Reason/Authority/SPD/RE Code:	In Lieu of Trial by Court-Martial, AR 635-200, 
			Chapter 10, KFS, RE-4
	e.	Unit of assignment:	A Trp, 7th Sqdn, 10th Cavalry Regiment, 1BCT, 4th 
			Infantry Division (Mechanized), Fort Hood, TX
	f.	Current Enlistment Date/Term:	7 September 2004, 3 years, 20 weeks
	g.	Current Enlistment Service:	2 years, 1 month, 13 days
	h.	Total Service:	2 years, 1 month, 13 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	19D10, Cavalry Scout
	m.	GT Score:	NIF
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (051209-060809)
	q.	Decorations/Awards:	NDSM; ICM; GWOTSM; ASR; CAB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	Yes, 29 September 2010

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 7 September 2004, for a period of 3 years and 20 weeks.  He was 18 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout.  His record documents no acts of valor or significant achievement.  He completed 2 years, 1 month, and 13 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 11 September 2006, the applicant was charged with the following offenses:

	a.	violation of Article 91, UCMJ, for disobeying an NCO (060906);
	b.	violation of Article 115, UCMJ, for three specifications of malingering: for the purpose of avoiding service and intentionally injuring himself on three occasions (060829x2 and 060906); and
	c.	violation of Article 124, UCMJ, for two specifications of wrongfully communicating a threat to SPC R and SSG B (060901).

The charges were referred to trial by a special court-martial empowered to adjudge a bad conduct discharge on 11 September 2006.

2.  On 21 September 2006, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did not submit a statement on his own behalf.  The unit and intermediate commanders recommended disapproving the request for discharge in lieu of trial by court-martial.  

3.  On 4 October 2006, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 19 October 2006, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service does not show any record of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458, Charge Sheet, described at paragraph 1 above. 

2.  Memorandum, dated 31 August 2006, subject; Mental Health Evaluation in the case of [the applicant], rendered by a psychiatrist provides the following diagnoses, and findings and recommendation, in pertinent part:

	a.	AXIS I:  Occupational problem, nicotine dependence, alcohol abuse with r/o dependence, and cocaine abuse; 
		AXIS II:  personality disorder not otherwise specified, with antisocial and borderline features; and
		ASIX III:  no diagnosis,
	b.	The applicant is deemed unsuitable for continued military service on the basis of the diagnoses; and,
	c.	The applicant is considered potentially dangerous.

	d.	Recommendation as it pertains to his discharge, indicates to process for expeditious administrative separation and that he is not considered mentally disordered but manifests a long-standing disorder of character, behavior and adaptability that is of such severity so as to preclude adequate military service.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two letters of support rendered by a former Service Member and a residential services administrator and two treatment letters from a clinical director, dated 9 May 2014 and case manager, dated 12 May 2014.

POST-SERVICE ACTIVITY: 

The applicant provided none.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  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.

3.  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.  

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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

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, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends he received an inequitable discharge based on the advice of the military counsel and his command.  However, 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 issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

5.  The applicant contends that he feels the onset of PTSD occurred during his service in Iraq and affected his performance as a scout and the underlying cause of his actions and behavior.  However, the service record contains no evidence of a PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition relating to PTSD.

6.  Therefore, the reason and 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, hearing his testimony, and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge, lack of timely access to mental health treatment and care, and his combat service 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.  This action entails restoration of grade to E-2/PV2.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance       Date:  9 June 2014       Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel/Representative:  Yes [redacted]

Witnesses/Observers: Yes - Mother

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Diagnosis from Doctor – 1 page
	b.  Certificate of completion – Veterans Village – 1 page

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:  4	No Change:  1
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:		E-2/PV2
Other:

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)		AR20140002496

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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