AR20140001049

IN THE CASE OF: Mr.

BOARD DATE: 15 December 2014

CASE NUMBER: AR20140001049
___________________________________________________________________________

Board Determination and Directed Action

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 was both proper and equitable and voted to deny relief.

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 APPLICANTS 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 and a change to the narrative reason for separation.

2. The applicant states, in effect, his behavior which resulted in his discharge was due directly to being diagnosed with Post Traumatic Stress Disorder (PTSD) confirmed by the VAMC. His PTSD was the result of combat in Kosovo, Iraq, and Korea.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 13 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 26 January 2013
d. Reason/Authority/SPD/RE: Misconduct (Civil Conviction), AR 635-200, Chapter 14, Section II, JKB, RE-3
e. Unit of assignment: 579th Forward Support Company, 6th Battalion, 37th Field Artillery, Korea
f. Current Enlistment Date/Term: 23 June 2009, 3 years and 15 weeks
g. Current Enlistment Service: 2 years, 7 months, 7 days
h. Total Service: 10 years, 7 months 7days
i. Lost time: 363 days
j. Previous Discharges: RA (980424-010311)/HD RA (010312-040311)/HD USARCG (040312-060423)/NIF (Break in Service)
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 91J10, Quartermaster and Chemical Equipment Repairer
m. GT Score: 97
n. Education: GED Certificate
o. Overseas Service: Kosovo/Korea
p. Combat Service: None
q. Decorations/Awards: AAM-2, NDSM, KCM GWOTSM, KDSM, ASR, OSR
r. Administrative Separation Board: No
s. Performance Ratings: No
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 24 April 1998, for a period of 3 years. He was 20 years old at the time of entry with a GED Certificate. He was trained in and awarded military occupational specialty (MOS) 92Y10, Unit Supply Specialist. He reenlisted on 12 March 2001, for a period of 3 years and he was 22 years old at the time. His record also shows he served a combat tour, earned an ARCOM and AAM-2; and he achieved the rank of SPC/E-4. He was discharged on 11 March 2004 with an honorable discharge and transferred the US Army Reserve Control Group to complete his reserve obligation. The applicant had a break in service until he enlisted in the Regular Army 23 June 2009, for a period of 3 years and 15 weeks. He was 31years old at the time of entry with a GED Certificate. He was trained in and awarded military occupational specialty (MOS) 91J10, Quartermaster and Chemical Equipment Repairer. His record does not contain any evidence of acts of valor or meritorious achievements during the period of enlistment under review; he achieved the rank of SPC/E-4. He was serving in Korea when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 12 December 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-9, AR 635-200, by reason of misconduct (civil conviction) for being convicted in the Uijeongbu District Court for violations of the act on the control of narcotics.

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 13 December 2012, 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, provided his separation was pursuant to AR 635-200, Chapter 5-17, other designated physical or mental conditions, rather than AR 635-200, Chapter 14-9, conviction by a foreign tribunal, and indicated he intended to submit a statement on his own behalf. 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 a general, under honorable conditions discharge.

4. On 18 December 2012, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement on his own behalf.

5. On 9 January 2013, the separation authority approved the conditional waiver request, waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.
6. The applicant was discharged from the Army on 26 January 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, Section II, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3.

7. The applicants record of service indicates 363 days of time lost. The record (DD Form 2708, Receipt for Inmate or Detained Person) indicates the applicant was in a deserter status from 13 October 2011 until 23 March 2012, for 163 days; mode of return unknown. Also, he was in civil confinement from 24 March 2012 until 9 October 2012, for 200 days.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. A negative counseling statement, dated 21 November 2012 for being informed of involuntary chapter.

2. A memorandum, results of trial, dated 10 October 2012 indicating the applicant was convicted in the Uijeongbu District Court.

3. A memorandum, International Hold, dated 14 October 2012 indicating an international hold was imposed on the applicant.

4. A CID Report of Investigation dated 12 October 2011 indicating the applicant was under investigation for wrongful possession of spice with intent to distribute.

5. A DA Form 3822 (Report of Mental Status Evaluation), dated 7 November 2011, indicating the applicant was diagnosed with a major depressive disorder and an anxiety disorder not otherwise specified (NOS). He had a long history depression and continued treatment, and a Chapter 5-17 would be more appropriate due to the long history depression and PTSD symptoms. Results of the evaluation show the applicant was responsible for his behavior, had the ability to distinguish right from wrong and possessed sufficient mental capacity to participate in administrative proceedings.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, two DD Forms 214, DA Form 3822 (Report of Mental Status Evaluation, three pages), and an active outpatient medications list, four pages.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with the 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 members 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 Soldiers 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JKB” will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge and a change of the narrative reason for separation was carefully considered. However, after examining the applicants 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 or a change of the narrative reason for separation.

2. The record confirms that the applicants 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 (civil conviction), the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicants record of service was marred by a negative counseling statement, results of trial, an international hold, and a CID Report of Investigation.

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 requested a change in the reason for the discharge. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, paragraph 14-9, for misconduct (civil conviction). The regulation further stipulates that no deviation is authorized.

5. The applicant contends his behavior which resulted in his discharge was due directly to being diagnosed with PTSD confirmed by the VAMC. On 7 November 2011 the applicant underwent a mental status evaluation which indicated he was diagnosed with a major depressive disorder and an anxiety disorder not otherwise specified. He had a long history of depression and continued treatment, and a Chapter 5-17 would be more appropriate due to his history of depression and PTSD symptoms. 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. The applicant was responsible for his behavior, had the ability to distinguish right from wrong and possessed sufficient mental capacity to participate in administrative proceedings.

6. Also, the applicant bears the burden of presenting 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 he was diagnosed by the VAMC with PTSD. However, the applicant provided a list of active medications to treat his PTSD symptoms.

7. The applicant additionally contends his PTSD was the result of combat in Kosovo, Iraq, and Korea. The record shows the applicant served in Kosovo during a prior period of service from 25 May 2000 until 15 December 2000; the applicant underwent a mental status evaluation while stationed in Korea; his medical records shows he was being treated by competent medical authority and prescribed several medications. However, the record does not support and the applicant did not provide any evidence to substantiate he served a combat tour in Iraq.

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

9. Therefore, 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: 15 December 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 0 No Change: 5
Reason Change: 0 No Change: 5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214: No
Change Characterization to: No Change
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) AR20140001049

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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