AR20140002713

IN THE CASE OF: Mr.

BOARD DATE: 1 July 2014

CASE NUMBER: AR20140002713
___________________________________________________________________________

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 general, under honorable conditions to honorable, a change to the reentry code and to the narrative reason for the discharge.

2. The applicant states, in effect, that if not for his undiagnosed and untreated PTSD by the Army, he would not have succumbed to self-medication through alcohol. Before his deployment to Afghanistan in 2008 through 2009, he was a Soldier with a bright career ahead of himself. Once he returned from combat, his world began to spiral out of control due to his inability to cope with the traumatic events in Afghanistan. Despite his PTSD, he has Soldiered on and continues to try to improve his own life, his familys life, and the lives of other veterans through his charitable efforts. Therefore, it is respectfully submitted that he should have his discharge upgraded to honorable.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 7 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 15 March 2011
d. Reason/Authority/SPD/RE: Misconduct (Civil Conviction), AR 635-200, Chapter
14, Section II, JKB, RE-3
e. Unit of assignment: 801st CS Bn, Fort Campbell, KY
f. Current Enlistment Date/Term: 13 May 2008, 4 years and 21 weeks
g. Current Enlistment Service: 2 years, 10 months, 3 days
h. Total Service: 2 years, 10 months, 3 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 88M10, Motor Transport Operator
m. GT Score: 114
n. Education: HS Gradate
o. Overseas Service: Southwest Asia
p. Combat Service: Afghanistan (081128-090315)
q. Decorations/Awards: NDSM, GWOTSM, ASR, OSR, NATOMDL
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 13 May 2008, for a period of 4 years and 21 weeks. He was 31 years old at the time of entry and a high school graduate. He was serving at Fort Campbell, KY when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. He completed 2 years, 10 months, and 3 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 3 December 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct (civil conviction) for being found guilty in Montgomery County, Tennessee Court of two counts of assault-extremely offensive touching; he was sentenced by the judge to serve two consecutive six months sentences in Montgomery County Jail, suspended on condition of good behavior and probation, to have no contact with the victims, not consume alcohol and to comply with the Army Substance Abuse Program.

2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3. The applicant’s election of rights memorandum is not contained in the available record and government regularity is presumed in the discharge process. 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 of the separation with a general, under honorable conditions discharge.

4. On 4 March 2011, 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 15 March 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, Section II, paragraph 14-5, AR 635-200, for misconduct (civil conviction), with a Separation Program Designator code (SPD) of JKB and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. A Military Police Report dated 21 August 2009, that indicates the applicant was the subject of an investigation for driving under the influence.

2. A General Officer Memorandum of Administrative Reprimand, dated 23 September 2009, for driving a motor vehicle on 21 August 2009 with a blood alcohol content of .143 percent.
3. A copy of the judgment letter from the Court of Montgomery County, Tennessee, dated 16 June 2010, which sentenced him.

4. A letter from the applicant’s defense counsel, dated 8 December 2010, reference failure to comply with requirements of OTSG/MEDCOM Policy Memo 10-040 and a copy of the memo.

5. Report of Behavioral Health Evaluation, dated 8 July 2010, indicating the applicant had been evaluated by a psychology technician and a Licensed Clinical Social Worker. The evaluation determined the applicant had the mental capacity to understand and participate in the proceedings against him, was mentally responsible and met the retention requirements of Chapter 3, AR 40-501. Furthermore the applicant was screened for PTSD and mTBI IAW OTSG/MEDCOM Policy Memo 08-018 and the results were negative.

6. Six negative counseling statements dated between 21 August 2009 and 8 July 2011, for driving under the influence of alcohol, failure to report at his appointed place and time of duty, disobeying a lawful order given by a senior noncommissioned officer, ASAP Performance Progress, arrest for sexual battery, and his debt responsibilities.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, supplemental brief in support of his application from his legal counsel, and 35 exhibits which include; documents from the Boston Veterans Center, documents from his separation packet, judgment from the Tennessee Courts for his offense of assault, memorandum requesting rehabilitative transfer, and documents from his active duty and post service medical records.

POST-SERVICE ACTIVITY:

The applicant states, in effect, that he is enrolled as a full-time student in college, pursuing a career in health care and human services and maintains an impressive 3.55 GPA.

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, Section II, paragraph 14-5 misconduct (civil conviction).

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, a change to his RE code, and to the narrative reason for the discharge was carefully considered. However, after examining the applicants record of service, his military records, 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 (civil conviction), the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicants record of service was marred by his civil conviction and several negative counseling statements.

3. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.

4. 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.

5. The applicant also requested to have his reentry eligibility code and narrative reason for discharge changed. However, 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 14-5, for misconduct (civil conviction). The regulation further stipulates that no deviation is authorized.

6. Further, 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. 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 3. There is no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.

7. The applicant contends that if not for his undiagnosed and untreated PTSD by the Army, he would not have succumbed to self-medication through alcohol. The independent documents submitted by the applicant indicating he experiences a full range of PTSD symptoms were noted. However, evidence in the record shows the applicant was screened for PTSD and mTBI IAW OTSG/MEDCOM Policy Memo 08-018 which were negative. Therefore, the applicant’s available record does not contain any evidence of an in-service diagnosis of PTSD as indicated in the independent documentation submitted by the applicant and the applicant did not submit any corroborating evidence of in-service diagnosis of PTSD or any related medical issues.

8. Additionally, while the applicant may believe his self-medication through alcohol was the result of his undiagnosed and untreated PTSD by the Army, he had many legitimate avenues through which to obtain assistance or relief before committing the misconduct which led to the separation action under review. The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and enrollment in ASAP. The applicant failed to respond appropriately to these efforts. Likewise, he has provided no evidence that he should not be held responsible for his misconduct.

9. 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. The character of the applicants discharge is commensurate with his overall service record.

10. 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: Records Review Date: 1 July 2014 Location: Washington, DC

Did the Applicant Testify, No

Counsel: Yes [redacted]

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) AR20140002713

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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