AR20140001076

IN THE CASE OF: Mr.

BOARD DATE: 30 May 2014

CASE NUMBER: AR20140001076
___________________________________________________________________________

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 characterization from general, under honorable conditions to honorable.

2. The applicant states, in effect, that his discharge was improper because in the seven years he served, he only had two negative instances both due to the traumatic loss of his brother. Until that point he served as a model Soldier for years.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 13 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 1 April 2011
d. Reason/Authority/SPD/RE: Misconduct (Civil Conviction), Chapter 14, Sec II JKB, RE-3
e. Unit of assignment: E Co,4 th BCT (Rear) (Prov), 101st Abn Div(Rear) Fort Campbell, KY
f. Current Enlistment Date/Term: 22 February 2009, 4 years
g. Current Enlistment Service: 2 years, 1 month, 10 days
h. Total Service: 6 years, 10 months, 20 days
i. Time Lost: 27 days confinement
j. Previous Discharges: RA/040413-060321/HD RA/060303-090221/HD
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 97
n. Education: GED
o. Overseas Service: SWA
p. Combat Service: Iraq (051127-061115), Afghanistan (080304-090301)
q. Decorations/Awards: ARCOM-2, MUC, NUC, AGCM, NDSM, ACM-CS, ICM-2-CS, GWOTSM, ASR, OSR-2, NATOMDL, CIB
r. Administrative Separation Board: Yes
s. Performance Ratings: Yes
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 13 April 2004 for a period of 3 years and 16 weeks. He was 18 years old at the time of entry and had obtained a GED. He served two combat tours in Iraq and Afghanistan. He earned several awards including the following: ARCOM-2, AGCM, and a CIB. He was serving at Fort Campbell, KY when his discharge proceedings were initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. On 7 December 2010, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-5, by reason of misconduct (civil conviction); specifically for: being found guilty in Christian County Kentucky Court of 4th degree assault and domestic violence. He was sentenced to six months confinement, to serve 30 days of the sentence, which was suspended, and the balance was probated with supervised probation.

2. Based on the above misconduct, the commander recommended a general, under honorable conditions discharge.

3. On 8 December 2010, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions. The applicant did not submit 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 an under honorable conditions discharge.

4. On 27 January 2011, the applicant was notified to appear before an administrative separation board on 9 February 2011, and advised of his rights even though he waived them. On 10 February 2011, the applicant was re-notified of his appearance before an administrative separation board based on a change of the board date to 24 February 2011. He was advised of his rights again.

5. On 23 February 2011, the applicant waived his rights to legal counsel and elected to represent himself and present his own case at the administrative separation board.

6. On 24 February 2011, an administrative separation board convened and the applicant appeared without counsel. The board recommended the applicants discharge with characterization of service of general, under honorable conditions.

7. On 24 March 2011, the separation authority approved the separation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

8. The applicant was separated on 1 April 2011, under Army Regulation 635-200, Chapter 14, section II misconduct (civil conviction), with a general, under honorable conditions discharge, an SPD code of JKB, and an RE code of 3.

9. The applicant’s record shows he was confined by civilian authorities for 30 days (100627-100726).

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Article 15, dated 18 August 2010, for failure to report on four occasions (100423, 100501, 100610, 100611). The punishment consisted of a reduction to E-4, and extra duty and restriction for 45 days.

2. A Police Report with allied documents, dated 27 June 2010, that indicates the applicant was the subject of an investigation for domestic assault.

3. Three negative counseling statements dated between 27 April 2010 to 26 July 2010, for failure to report (100423, 100501) and for being arrested and charged with 2nd Degree Assault and Domestic Violence (100627).

4. The findings and recommendation of an administrative separation board with allied documents, dated 24 February 2011.

5. Two DA Forms 4187 (Personnel Action), reflecting the applicants duty status changes from present for duty to confinement (100627), and confinement to present for duty (100726).

6. Two Noncommissioned Officer Evaluation Reports (NCOERs) with the ending periods 090531, and 100531. The most recent evaluation reflected a negative evaluation noting several of the applicants leadership shortcomings.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, received on 13 January 2014; a DD Form 214; and a claim decision with allied documents from the Department of Veterans Affairs, dated 26 March 2013 indicating the applicant was awarded service connected compensation for PTSD
(70 percent), effective 23 May 2012.

POST-SERVICE ACTIVITY:

None provided 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

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

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, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge. The applicants record of service was marred by an Article 15 for a violation of the Uniform Code of Military Justice, a military police report, and several negative counseling statements.

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

4. The applicant contends his discharge was improper because in the seven years he served, he only had two negative instances in his entire Army career. Although he may have felt that he had only two negative instances, these instances constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.

5. The applicant contends the Veterans Administration has granted him a service connected disability for Post-Traumatic Stress Disorder (PTSD) which contributed to his misconduct. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 10 September 2010, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content clear, and was able to recognize right from wrong. It appears the applicants chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong as indicated by the mental status evaluation. Further, there are many Soldiers with the same condition that completed their service successfully.

6. The record contains no evidence of arbitrary or capricious actions by the applicants command, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

7. Records show the proper discharge and separation authority procedures were followed in this case.

8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance Date: 30 May 2014 Location: Washington, DC

Did the Applicant Testify, No

Counsel: None

Witnesses/Observers: No

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) AR20140001076

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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