AR20140002972

IN THE CASE OF:

BOARD DATE: 4 February 2015

CASE NUMBER: AR20140002972
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review, notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the circumstances surrounding the discharge (i.e., the applicant’s capability to serve was impaired by his ability to serve satisfactorily as well as his ability to adjust to military service). 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 both proper and equitable and voted not to change it. This action entails restoration of grade to PFC/E-3.

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 under other than honorable conditions to honorable and a change to his narrative reason for separation to schizophrenia symptoms.

2. The applicant states, in effect, that he was discharged from the Army unlawfully because his schizophrenia went untreated even after two inpatient hospitalizations. He believes his discharge was unfair, unjust, and improper. He argues there were mitigating circumstances surrounding the problem and misconduct that led to his discharge. He was medically and mentally unstable which kept him from performing his duties. He contends, he began having severe schizophrenic, auditory hallucinations symptoms, in the summer of 2009, and was admitted twice to Landstuhl Regional Medical Center. He was originally in line for a 5-17 discharge. His symptoms became unbearable and he began to consume alcohol, and was not discharged with anti-psychotic medication from Landstuhl Regional Medical Center. He contends he did not cause personal injury, death or property damage.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 10 February 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 23 December 2009
d. Reason/Authority/SPD/RE: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4
e. Unit of assignment: A Co, 3rd Bn, 2nd Cav, Vilseck, GE, APO AE
f. Current Enlistment Date/Term: 23 September 2008, 6 years and 17 weeks
g. Current Enlistment Service: 1 year, 3 months, 1 day
h. Total Service: 1 year, 3 months, 1 day
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 105
n. Education: GED
o. Overseas Service: Germany
p. Combat Service: None
q. Decorations/Awards: NDSM, GWOTSM, ASR
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 23 September 2008, for a period of 6 years and 17 weeks. He was 19 years old at the time of entry and had a high school equivalency (GED). The record does not contain any evidence of acts of valor or meritorious achievements.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 19 November 2009, the applicant was charged with the following offenses:

a. disobeying a lawful order from a noncommissioned officer (090917),
b. committing an assault on a noncommissioned officer by pointing at him with a dangerous weapon, to wit; a knife (090917), and
c. being drunk and disorderly (090917).

2. On 3 December 2009, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans benefits. The applicant did not submit a statement on his own behalf. The applicant’s chain of command recommended approval of an UOTHC discharge.

3. On 10 December 2009, the separation authority approved the Chapter 10 request and directed the applicant’s discharge with a characterization of service of UOTHC. The applicant was reduced to the lowest enlisted rank.

4. The applicant was discharged from the Army on 23 December 2009, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4.

5. The applicants record of service does not show any record of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Military Police Report dated 18 September 2009, which indicates the applicant was the subject of investigation for aggravated assault and for his conduct of being drunk and disorderly.

2. Physician Discharge Summary, dated 14 September 2009, indicates the applicant had no prior psychiatric treatment and that he saw a counselor while in a troubled youth program. He had a past history of aggression and arrests. He admitted to intermittent depression which was noted by his high school guidance counselor when he was 16 year old. He admitted to a suicide gesture at that time, during which he stopped eating for three days, and after which reportedly his uncle (who was recently released from prison), took him out on a binge (alcohol and drugs) to make him feel better. He also reported anger issues in high school, with breaking windows and frequent fights during binge (alcohol) episodes.

3. A Memorandum dated 25 September 2009, “Report of Mental Status Evaluation,” which indicates the applicant was diagnosed with an adjustment disorder with mixed disturbance for emotions and conduct, resolved; personality disorder, NOS with; occupational problem. The inpatient psychiatry who signed the memorandum states in the recommendation area; the applicant was psychiatrically cleared for any administrative action deemed appropriated by the command; expeditious separation from Active duty. Close supervision until separated given continued likelihood of acting out behaviors and alcohol consumption. Prolonged retention on active duty was likely to cause further management problems for command. Psychiatric factors indicated that administrative separation under AR 635-200, paragraph 5-17, would be in the best interests of the applicant and the military.

4. Several negative counseling statements dated between 27 February 2009 and 24 September 2009, for physical fitness, military bearing and personal appearance, past training events, upcoming training events, control of his ration card, TA-50 being unsecure, failure to maintain accountability of his room key, and for his drunk and disorderly conduct/aggravated assault.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a report of medical history, dated 11 September 2009, and a hospital report with a print date of 24 September 2009.

POST-SERVICE ACTIVITY:

None was provided with the application.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2. 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 member’s 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.

3. 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.

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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “KFS” will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

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

2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.

4. The applicant contends his discharge was unfair, unjust, and improper. He argues there were mitigating circumstances surrounding the problem and misconduct that led to his discharge. He was medically and mentally unstable which kept him from performing his duties. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was unfair, unjust, or improper. In fact, the applicants acts of misconduct justify his discharge.

5. Furthermore, evidence of records show the applicant was diagnosed with an adjustment disorder with mixed disturbance for emotions and conduct, resolved; personality disorder, NOS with; occupational problem. However, it was determined the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command.

6. It was also noted the applicant was recommended for separation under the provisions of AR 635-200, paragraph 5-17. However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.

7. 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.

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

BOARD DETERMINATION AND DIRECTED ACTION:

After carefully examining the applicants record of service during the period of enlistment under review, notwithstanding the Discussion and Recommendation, the Board determined the characterization of service was too harsh based on the circumstances surrounding the discharge (i.e., the applicant’s capability to serve was impaired by his ability to serve satisfactorily as well as his ability to adjust to military service). 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 both proper and equitable and voted not to change it. This action entails restoration of grade to PFC/E-3.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 4 February 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 3 No Change: 2
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: E-3/PFC
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) AR20140002972

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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