AR20140002752

IN THE CASE OF: Mr.

BOARD DATE: 13 March 2015

CASE NUMBER: AR20140002752
___________________________________________________________________________

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 referral to a PEB was not warranted as evident in the record. However, the Board did determine that the characterization of service was too harsh based on the circumstances surrounding the discharge (i.e., applicants medical issues which led to his MEB) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 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 an upgrade of his discharge characterization from general, under honorable conditions to honorable.

2. The applicant states, in effect, that his discharge was based on one mistake. He contends he served honorable; after receiving his third back surgery he went on leave and when he didn’t return he was considered AWOL. At the time he was not in his right state of mind and was suffering from severe depression from going through all the back surgeries; and the 100 pound weight gain came from all the steroids, pain killers, and Prozac. He was made fun of because of his weight and his military career was over. He had just received a Medical Board and was going to be discharged medically with an honorable discharge. He was using up his leave days when he fell apart and could not think clearly. He realizes he made a mistake, and when he returned he was given an Article 15 and was later discharged for the same reason. He believes he was punished twice for the same crime although this was his only incident of misconduct. He contends his command told him that after six months his discharge would change to fully honorable. He was young and believed what he was told; and has suffered for this in more ways than he can count.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 10 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 3 August 2005
d. Reason/Authority/SPD/RE: Misconduct, AR 635-200,Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: HHT, 1st Bn, 75th AR, Fort Campbell, KY
f. Current Enlistment Date/Term: 11 July 2001, 6 years
g. Current Enlistment Service: 3 years, 5 months, 3 days
h. Total Service: 3 years, 5 months, 3 days
i. Time Lost: 230 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11C10, Indirect Fire Infantryman
m. GT Score: 116
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: None
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 11 July 2001, for a period of 6 years. He was 19 years old at the time of entry and a high school graduate. He was serving at Fort Campbell, KY when his separation was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. He completed 3 years, 5 months, and 3 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 18 May 2005, 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 (serious offense) for receiving a Field Grade Article 15 (041119) for going AWOL (040401 to 041117) and for his pending charges in Montgomery County Court for domestic violence directed against his spouse.

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 is not contained in the available records 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 with a general, under honorable conditions discharge.

4. On 15 July 2005, 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 3 August 2005, 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 record of service indicates 230 days of time lost for going AWOL from 1 April 2004 until his return on 16 November 2004.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Three DA Form 4187’s (Personnel Action), dated between 1 April 2004 and 17 November 2004, changing the applicant’s duty status from present for duty (PDY) to absent without leave (AWOL), and from AWOL to drop from rolls (DFR), and from DFR to PDY.

2. Article 15, imposed on 19 November 2004, for going AWOL (040401-041117). The punishment consisted of reduction to E-1, forfeiture of $586.00 per month for two months and extra duty and restriction for 45 days (FG).

3. Montgomery County, Tennessee Court documents pertaining to an incident of domestic violence involving the applicant and his spouse.

4. Order of Protection, dated 6 July 2005.

5. Negative counseling statement dated 24 November 2004, for possibly committing another serious offense.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a memorandum dated 11 January 2005, requesting referral of the applicant separation packet to a physical evaluation board IAW AR 635-200, paragraph 1-33b(1)(b).

POST-SERVICE ACTIVITY:

None were provide 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.

2. After a careful review of all the applicants military records, the issues and documents submitted with the application, the discharge appears to be improper.

3. The evidence of record indicates the applicant was pending a Medical Evaluation Board (MEB) at the time of initiation of his discharge as noted by the company commander and battalion CSM’s comments. There are no documents in the record indicating the MEB results were referred to a physical evaluation board (PEB) for further processing or that a PEB was not warranted. It was the General Court-Martial Convening Authority’s (GCMCA’s) responsibility to determine whether or not the administrative separation process would be pursued rather than processing through the medical disability channels. A copy of the GCMCA’s decision memorandum (which could not be delegated) was required to be included in the separation packet.

4. Further, the record does not indicate the outcome of the MEB, therefore the likelihood of the MEB having found the Soldier fit for duty or the GCMCA having been consulted if the Soldier had been found eligible for a PEB during that period is not contained in the available record. The failure to include the MEB results in the packet coupled with the short time span involved in the separation of the applicant prevents the presumption of Government Regularity from being applied in this case.

5. The records show the proper discharge and separation procedures were not followed in this case.

6. Therefore, the discharge being improper, the analyst recommends the Board grant relief in the form of an upgrade of a change to the characterization of service to Honorable, and a change to the narrative reason for separation to Secretarial Authority, under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of “JFF.” This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it.

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, the Board determined that the referral to a PEB was not warranted as evident in the record. However, the Board did determine that the characterization of service was too harsh based on the circumstances surrounding the discharge (i.e., applicants medical issues which led to his MEB) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 13 March 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

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: Honorable
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) AR20140002752

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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