IN THE CASE OF:	

      BOARD DATE:	8 June 2015

      CASE NUMBER:	AR20150002336
___________________________________________________________________________

Board Determination and Directed Action

1.  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 tour, and the medical circumstances surrounding the discharge (i.e., the record shows the applicant had a post service independent Axis 1 mental diagnosis of Post Traumatic Stress Disorder (PTSD), bipolar disorder and multiple mental issues to include post concussive syndrome, and his testimony and was receiving treatment for these conditions), mitigated the discrediting entries in the service record, and as a result, it is inequitable.

2.  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 both proper, and equitable, and voted not to change it.  This action entails restoration of grade to SPC/E-4.




      
      
      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 characterization from under other than honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2.  The applicant states through counsel, in effect, he developed a severe case of Post Traumatic Stress Disorder (PTSD).  The command did not provide any assistance to take care of him.  He desires to receive VA benefits.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	9 February 2015
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	8 February 2007
	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:	HHC, 2-12th Infantry Regiment (Rear) (Provisional), 2nd 
			BCT (R) (P), 2nd Infantry Division, Fort Carson, CO
	f.	Current Enlistment Date/Term:	8 January 2004, 6 years
	g.	Current Enlistment Service:	1 year, 11 months, 26 days/block 12e on the 					applicant’s DD Form 214 total prior inactive service, 				is incorrect and should read 2 years, 6 months and 				24 days to account for the applicant’s time as a 				cadet.
	h.	Total Service:	4 years, 6 months, 29 days
	i.	Time Lost:	223 days
	j.	Previous Discharges:	USAR/Cadet (981002-000323)/NA						ARNG (000324-010425)/HD
			None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	116
	n.	Education:	2 years of college
	o.	Overseas Service:	Southwest Asia/Korea
	p.	Combat Service:	Iraq (040808-050730)
	q.	Decorations/Awards:	ARCOM, NDSM, ICM, GWOTSM, KDSM, ASR, CIB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	No
	t.	Counseling Statements:	No
	u.	Prior Board Review:	Yes

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the US Army Reserve on 2 October 1998, for a period of 8 years as a cadet.  He was 18 years old at the time of entry and a high school graduate.  He was discharged from the US Army Reserve on 23 March 2000; the characterization of service was not in the file.  The applicant enlisted in the Army National Guard on 24 March 2000, for a period of 6 years.  He was 19 years old at the time of entry and a high school graduate.  He was discharged on 25 April 2001; with an honorable discharge.  The applicant enlisted in the Regular Army on 8 January 2004, for a period of 6 years.
He was 24 years old at the time of entry with two years of college.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record also shows he served a combat tour, earned several awards which included an ARCOM and a CIB; and he achieved the rank of SPC/E-4.  He was serving at Fort Carson, Colorado, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army.  However, on 11 December 2006, the checklist for pretrial confinement indicates the applicant was charged with the following offenses:

     a.  wrongfully using marijuana (060522),

     b.  disobeying a lawful order, by breaking post restriction (060522),

     c.  being AWOL with intent to desert in order to avoid deployment (060524), and

     d.  failing to report to ASAP appointments x 2 (061116 and 061117).

2.  The applicant consulting with legal counsel and voluntarily requesting, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial is not contained in the available record and government regularity is presumed in the discharge process.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The intermediate commander recommended approval of an under other than honorable conditions discharge.

3.  The separation authority disapproved the applicant’s Chapter 10 request, and if the request was approved, he did not specify a characterization of service.

4.  The applicant was discharged from the Army on 8 February 2007, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and a RE code of 4.

5.  The applicant’s record of service indicates 202 days of time lost for being AWOL from           24 May 2006 until 30 October 2006 and 21 November 2006 until 11 December 2006, for 21 days; mode of return unknown for both periods.  Total time lost 223 days.  Also, the applicant was in civilian confinement on 11 December 2006 and then military confinement on 11 December 2006.

6.  The applicant’s service record does not contain any negative counseling statements or actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains eight DA Forms 4187 (Personnel Action), dated between 24 May 2006 and 13 December 2006, showing the applicant’s present for duty, AWOL, dropped from rolls civilian and military confinement dates.

2.  Two positive urinalysis tests coded PO (Probable Cause), dated 10 May 2006 and            14 December 2006, both for THC.

3.  A pre-trial confinement checklist dated, 11 December 2006, indicating the applicant was placed in pre-trial confinement.

4.  DA Form 8003, Army Substance Abuse Program (ASAP) Enrollment, dated 6 November 2006, indicating the applicant was command referred to ASAP.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, attorney’s brief (nine pages), Enlisted Record Brief (ERB), Officer Candidate School letter of recommendation, self-authored statement (three pages), two sworn statements, chronological record of medical care, parent’s letter, grandparent’s letter, brother’s letter: additional documents; two letters from Covenant Family Medicine, VAMC initial fill prescription certificate, VA historical prescriptions, and a find the right doctor computer page; and additional mental documents, Lawrenceville Center (38 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions 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.  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 "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 a SPD Code of "KFS" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization of service and a change to the narrative reason for separation to include the (RE) code was carefully considered.

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

     a.  Overall length and quality of service to include his combat tour:  The applicant served    1 year, 11 months and 26 days of his enlistment contract of 6 years.  He had a total of 4 years, 6 months and 29 days of military service, thus the preponderance of his service was honorable.  The record confirms the applicant received several awards, specifically an ARCOM and a CIB; and he served a combat tour in Iraq.

     b.  Medical circumstances surrounding the discharge (i.e., the record shows the applicant had a post service independent Axis 1 mental diagnosis of PTSD, bipolar disorder and multiple mental issues to include post concussive syndrome and was receiving treatment for these conditions).

3.  This recommendation was 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 was too harsh and as a result, it is inequitable. 

4.  In view of the foregoing, the characterization of the discharge is inequitable and the analyst recommends the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.

5.  The applicant requests a change in the reason for the discharge to include the RE code which would allow him to receive treatment at the VA.  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.  The regulation further stipulates that no deviation is authorized.  

6.  Further, 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 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

7.  The applicant contends he developed a severe case of PTSD and did not receive any assistance from the command.  The independent medical documents diagnosing the applicant with PTSD are acknowledged.  If the applicant feels he was not receiving or had not received appropriate medical or mental care, he could have self-referred to the community behavioral health services for treatment.

8.  Further, 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. 

9.  The applicant desires to receive VA benefits.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

10.  In view of the foregoing, the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails restoration of grade to SPC/E-4.  See paragraph 4 above.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance      Date:  8 June 2015     Location:  Washington, DC

Did the Applicant Testify:  Yes

Counsel:  Yes

Witnesses/Observers:   Yes

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

     a.  MEB Records (11 pages)

     b.  Emails (6 pages)

     c.  Pictures (6 pages

     d.  Police Records (2 pages)

     e.  Letter (1 page)

2.  The applicant presented the additional contention:

	Request change to narrative reason and re-code 

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:   5	No Change:   0
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:  	No Change
Change RE Code to:  			No Change
Grade Restoration to:  			E-4/SPC
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)		AR20150002336

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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