AR20140002720

IN THE CASE OF: Mr.

BOARD DATE: 24 April 2015

CASE NUMBER: AR20140002720
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicants length and quality of his service to include his combat service, the circumstances surrounding his discharge involving Post-Traumatic Stress Disorder, and as a result it is inequitable. Accordingly, the Board voted to grant partial 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 proper and equitable and voted not to change it.

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 to upgrade the characterization of his service from under other than honorable to honorable.

2. The counsel on behalf of the applicant states, in pertinent part and in effect, the applicants discharge is too harsh because his disciplinary infractions were the result of his undiagnosed and untreated Post-Traumatic Stress Disorder (PTSD), which developed during a high-stress environment in Iraq. His discharge is inequitable in view of his laudable combat service, his post-service life, and current need for medical aid. He is employed as a junior golf professional with the goal to grow his skills and education in sport, and becoming a fully-certified golf professional. He regularly attends religious services, donates, and assists with church activities.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 6 February 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 9 April 2007
d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Paragraph 14-
12b, JKA, RE-3
e. Unit of assignment: Home Detachment, 5th Sqdn, 7th Cavalry Regiment,
1st BCT, 3rd ID (Rear) (Provisional), Fort Stewart, GA
f. Current Enlistment Date/Term: 4 November 2003, 4 years
g. Current Enlistment Service: 3 years, 4 months, 26 days
h. Total Service: 3 years, 4 months, 26 days
i. Time Lost: 10 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 68W10, Health Care Specialist
m. GT Score: 111
n. Education: One year of college
o. Overseas Service: SWA
p. Combat Service: Iraq (050104-060106)
q. Decorations/Awards: NDSM; GWOTSM; ICM; ASR; OSR; CMB
r. Administrative Separation Board: No, unconditionally waived
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 4 November 2003, for a period of 4 years. He was 25 years old at the time of entry and had a year of college. He was trained in and awarded military occupational specialty (MOS) 68W10, Health Care Specialist. He served in Iraq. His record documents no other acts of valor or significant achievement. He completed 3 years, 4 months, and 26 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record shows that on 14 March 2007 (as acknowledged by the applicant), the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct, specifically for the following incidents:

a. willfully and negligently being derelict in his duties, in that he has verbally and through lack of compliance refused to perform duties normally expected of a Soldier in the US Army, and by the dereliction, damaging unit morale and being a distraction to the chain of command;
b. testing positive for marijuana (060124);
c. failing to report to duty on multiple occasions (060602-060813);
d. absenting himself from his unit without leave for the purpose of avoiding movement to deployment readiness exercises (060914) and other field exercises (060809).

2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3. On 14 March 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, and did not submit a statement on his 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 of the separation with an under other than honorable conditions discharge.

4. On 27 March 2007, the separation authority approved the unconditional waiver request, waived further rehabilitation, and directed the applicants discharge with a characterization of service of under other than honorable conditions.

5. The applicant was discharged from the Army on 9 April 2007, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA, and an RE code of 3.

6. The applicants record of service indicates 10 days of time lost for being AWOL on two separate occasions (060810-060814) and (060915-060919).

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. There is a positive urinalysis report contained in the record: IU, Inspection Unit, 24 January 2006, marijuana.

2. Article 15, dated 8 May 2006, for wrongfully using marijuana (060110-060124). The punishment consisted of a reduction to the grade of E-1, forfeiture of $640 per month for two months (suspended), and 45 days of extra duty and restriction, (FG).

3. An Offer to Plead Guilty, dated 1 December 2006, indicates the applicants offer to plead guilty to all charges and accept trial by summary court-martial, and agreed to waive his right to an administrative separation board hearing if he is recommended for an under other than honorable conditions discharge. The offer was accepted by the summary court-martial convening authority.

4. A Stipulation of Fact, dated 1 December 2006, lists several facts that were stipulated between the applicants counsel and a trial counsel.

5. Eleven negative counseling statements, dated between 10 March 2006 and 14 August 2006, for being AWOL; failing to follow instructions; being insubordinate; being restricted to the barracks; failing to report to his assigned place of duty at the prescribed time; missing movement; disobeying a commissioned officer; and being found positive for THC.

6. Reports of Mental Status Evaluation, dated 7 June 2006 and 8 February 2007, indicate the applicant was psychiatrically cleared for any administrative actions deemed appropriate by his command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a counsel-authored statement; DD Form 214 for service under current review; counsels cover letter, dated 31 January 2014; VAs response, undated; NPRC letter, dated 11 September 2013; and VA Records Management Center letter, dated 17 April 2013.

POST-SERVICE ACTIVITY:

The applicant states, in effect, he is employed as a junior golf professional with the goal to grow his skills and education in sport, and becoming a fully-certified gold professional, and he regularly attends religious services, and donates and assists with church activities.

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 “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct.

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

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, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The record confirms 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 pattern of 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 action for violation of the Uniform Code of Military Justice, an offer to plead guilty in a summary court-martial, and multiple 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 disciplinary infractions were the result of his undiagnosed and untreated PTSD, which developed during a high-stress environment in Iraq. However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support or corroborate the contention that the discharge was the result of any medical condition.

5. The applicant contends that he had good service which included his laudable combat service. The applicants service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented action under an Article 15 of the Uniform Code of Military Justice.

6. The applicants post-service accomplishments outlined in the application were also considered. However, these accomplishments did not overcome the reason for discharge and characterization of service granted.

7. The applicant contends that an upgrade of his discharge would allow medical treatment and educational benefits through the use of the GI Bill for his education in sport. However, 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. Further, the Board does not grant relief solely for the purpose of obtaining veterans benefits.

8. 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. Accordingly, 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, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 24 April 2015 Location: Washington, DC

Did the Applicant Testify, No

Counsel/Representative: Yes [redacted]

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: 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) AR20140002720

Page 7 of 7 pages

ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

1