AR20140001650

IN THE CASE OF: Mr.

BOARD DATE: 23 January 2015

CASE NUMBER: AR20140001650
___________________________________________________________________________

Board Determination and Directed Action

1. After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding 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 general, under honorable conditions to honorable and a change to the narrative reason for separation.

2. The applicant states, in effect, his leaders failed in their responsibility to provide him proper guidance and leadership to succeed; his command neglected their responsibility of taking care of Soldiers; and his battalion commanders bias decision led to his demise. He endured near-death experiences; and after returning from Iraq these experiences began taking a toll on his health and well being. His spouse at the time mentioned, he was a different person, always angry and jumpy; he took it personal and verbally retaliated and his marriage began to dissolve. He began self-medicating with drugs and alcohol. He self-referred to the Army Substance Abuse Program (ASAP) hoping they would intervene in his substance abuse. He was admitted to the hospital as an inpatient and diagnosed with Post Traumatic Stress Disorder (PTSD); he was exhibiting symptoms consistent with PTSD that should have been recognized and addressed properly by his chain of command. His chain of command made no attempt to rehabilitate him. He has experienced prejudice in the civilian work place because of the discharge he received. He desires to receive VA benefits to complete his schooling as soon as possible.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 22 January 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 20 June 2007
d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: A Co, 40th Expeditionary Battalion, Fort Huachuca, AZ
f. Current Enlistment Date/Term: 12 November 2003, 6 years
g. Current Enlistment Service: 3 years, 7 months, 9 days
h. Total Service: 7 years, 11 months, 1 day
i. Lost time: None
j. Previous Discharges: RA (990720-031111)/HD
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 25L10, Cable System Installer/11B10, Infantryman
m. GT Score: 110
n. Education: One year of college
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq (040118-050116)/Kuwait (051010-061005)
q. Decorations/Awards: AAM-2, AGCM-2, NDSM, ICM, GWOTEM,
HSM, NPDR, ASR
r. Administrative Separation Board: No
s. Performance Ratings: Yes
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 20 July 1999, for a period of 4 years. He was 18 years old at the time of entry with one year of college. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. On 12 November 2003, he reenlisted for 6 years and was 22 years old at the time. He subsequently trained in and was awarded (MOS) 25L10, Cable System Installer. His record also shows he served two combat tours, earned several awards including two AAMs, two AGCMs and a HSM; and he achieved the rank of SGT/E-5. He was serving at Fort Huachuca, AZ when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 23 May 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense. Specifically for the following offenses:

a. receiving a FG Article 15 for leaving his unit without authority (070302-070305),

b. failing to provide BAH to his spouse as directed by his company commander,

c. wrongfully traveling to Nogales, Mexico without proper authority (070301), and

d. testing positive for using marijuana on two separate occasions.

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 23 May 2007, 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 contingent upon receiving a characterization of service no less favorable than general, under honorable conditions, and indicated he intended to submit a statement on his own behalf (which is not contained in the available records). 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 30 May 2007, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 20 June 2007, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. An Article 15, dated 11 April 2007, for without authority, absenting himself from his unit (070302-070305); disobeying a lawful command from his superior commissioned officer (2LT), to pay his spouse pro-rata share of BAH II as prescribed by AR 608-99 (070214), violating a lawful general order by wrongfully traveling to Nogales, Mexico without proper authority (070301); and wrongfully using marijuana x 2 (070121-070220) and (070203-070305); the punishment consisted of a reduction to E-4, forfeiture of $1,031 pay for two months (second month suspended) and extra duty for 45 days, (FG).

2. The applicant received six negative counseling statements, dated between 2 February 2007 and 4 May 2007 for failing to provide spousal support, being flagged for adverse action, being AWOL, directing the applicant to enroll in ASAP, and being processed for separation.

3. Two positive urinalysis reports, one coded IR (Inspection Random), dated 20 February 2007, for THC and the other coded PO (Probable Cause), dated 5 March 2007, for THC.

4. Superior Court of Arizona documents, Maricopa County, dated 6 December 2006 indicating the applicant was summoned to court, a preliminary injunction on the applicant and respondent, petition for dissolution of marriage, notice of obligations to creditors and dissolution of marriage (divorce, fifteen pages).

5. Two DA Forms 4187 (Personnel Action), dated 2 March 2007 and 5 March 2007, showing the applicants present for duty and AWOL dates.

6. A DA Form 3822 (Report of Mental Status Evaluation), dated 1 May 2007, indicating the applicant was previously diagnosed with depression, which he received inpatient treatment and currently receiving out-patient follow-up treatment at Behavioral Health Services. He also was presented with substance abuse problems and was referred to ASAP for treatment. There was no evidence of mental defect, emotional illness or psychiatric disorder of sufficient severity to warrant disposition through medical channels. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, DD Form 293 and copy of a DD Form 293, list of attachments, self-authored statement (ten pages)/with addendum, letter, Department of Veterans Affairs, letter, Boys and Girls Club of San Fernando Valley, letter, Los Angeles County Office of Education, Enlisted Record Brief (ERB), AMHRR documents (sixteen pages), conscientious objector packet (six pages), chronological record of medical care (four pages), memorandum, room assignment procedures for geographical bachelors, AR 608-99, pages 10-12, e-mail, two DA Forms 4856 ( Developmental Counseling Form, three pages), DA Form 268, flag, sworn statement, DA Form 2627 (Report of Article 15 Proceedings/with appeal memorandum), unit commanders recommendation memorandum (three pages), and pages 5 and 98, of AR 635-200.

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 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense).

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

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of his characterization of service and a change to the narrative reason for separation was carefully considered.

2. After examining the applicants 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 applicant’s discharge to honorable for the following reasons:

a. Overall length and quality of the applicants service: The applicant served 3 years, 7 months, and 9 days of his contract for the period under review of 6 years. At the time of his discharge the applicant had completed 7 years, 11 months, and 1 day of active duty service, thus the preponderance of his service was honorable.

b. The record confirms he received two AAMs, and two AGCMs.

c. The record also confirms the applicant served two combat tours, one in Kuwait and the other in Iraq.

d. Medical circumstances surrounding the discharge (i.e., the record shows the applicant was admitted to the Tucson VAMC on 3 April 2007 for several conditions and was discharged on 9 April 2007; he was admitted to The Tucson Medical Center on 12 April 2007 and diagnosed with PTSD and a mood disorder while on active duty and a treatment plan was established).

3. This recommendation was made after full consideration of all of the applicants faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicants characterization of service was too harsh and as a result, it is inequitable.

4. In view of the foregoing, the analyst recommends the Board grant partial relief in the form of an upgrade of the characterization of service to honorable.

5. The applicant requested a change to his narrative reason for separation. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for the misconduct (serious offense). The regulation further stipulates that no deviation is authorized.

6. However, the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.

BOARD DETERMINATION AND DIRECTED ACTION

1. After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 23 January 2015 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) AR20140001650

Page 7 of 7 pages

ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

1