AR20140002987

IN THE CASE OF: Mr.

BOARD DATE: 23 January 2015

CASE NUMBER: AR20140002987
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicants record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant’s service, to include his combat service, 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 honorable. The Board further determined the reason for discharge was both 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. Counsel requests an upgrade of the applicants general, under honorable conditions discharge to honorable and a change to the narrative reason for separation.

2. Counsel states, in effect, the applicant was a proven combat veteran that was demoted, fined, and involuntarily separated. He contends, there was extenuating and mitigating circumstances to justify an honorable discharge. He contends that the applicants punishment was extreme and did not fit the crime. Counsel states, the applicant served this nation honorably for four good, hard years and that the applicants discharge was unusually and inappropriately harsh in context.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 11 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 9 January 2012
d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200,
Chapter 14-12b, JKA, RE-3
e. Unit of assignment: D Company, 2d Battalion, 14th Infantry
Regiment, 2d Brigade Combat Team,
10th Mountain Division, Fort Drum, NY
f. Current Enlistment Date/Term: 4 January 2008/6 years, 16 weeks
g. Current Enlistment Service: 4 years, 6 days
h. Total Service: 4 years, 6 days
i. Time Lost: None
j. Previous Discharges: DEP, 071116-080103, N/A
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 104
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Iraq (091015-100801)
q. Decorations/Awards: ARCOM, MUC, AGCM, NDSM, GWOTSM,
ICM-CS, ASR, OSR, CIB
r. Administrative Separation Board: N/A
s. Performance Ratings: N/A
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 4 January 2008, for a period of 6 years and
16 weeks. He was 18 years old at the time of entry and a high school graduate. He served in Iraq, earned an ARCOM, and completed 4 years and 6 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Drum, New York.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 22 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14-12b, by reason pattern of misconduct. Specifically for on divers occasions failing to go at the time prescribed to his appointed place of duty.

2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3. On 1 December 2011, the applicant declined to consult with legal counsel, was advised of the impact of the discharge action and elected not to submit a statement on his own 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 with a general, under honorable conditions discharge.

4. On 15 December 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 9 January 2012, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14-12b, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA 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. Article 15, dated 5 October 2011, for failure to go at the time prescribed to his appointed place of duty on three occasions (110429, 110815, and 110914). The punishment consisted of a reduction to the grade of E-1, forfeiture of $733.00 pay (suspended), 45 days of extra duty and restriction (FG).

2. Four negative counseling statements, dated between 6 September 2011 and 12 October 2011, for insubordinate conduct, failing to be at appointed place of duty, failing to report to sick call, failure to obey orders, and initiation of separation proceedings.

3. DA Form 3822 (Report of Mental Status Evaluation), dated 7 November 2011, reflects that the applicant had a clear and normal thought process and was mentally responsible. The applicant was diagnosed with ADHD (Axis I).

EVIDENCE SUBMITTED BY THE APPLICANT:

1. Counsel provided a DD Form 293, dated 10 February 2014, and a DD Form 214 covering the period of service under review.

2. Legal Brief (17 pages), dated 10 February 2014, written by Ari Feilich, Esq, Chapman University, Military Law Institute & AMVETS Legal Clinic. The brief contains a summary of the chain of events that led to the applicants discharge, outlines the legal standard, and highlights previous cases adjudicated by the Army Review Boards Agency. The attachments are as follows:

a. affidavit of applicant, dated 10 February 2014,
b. affidavit of Mrs. H, dated 10 February 2014,
c. statement of SSG B,
d. statement of CPT P,
e. statement of SGT W,
f. discharge packet,
g. statement of Ms. C, and
h. missing persons flyer.

POST-SERVICE ACTIVITY:

None was provided 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.

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 14-12b, 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. Counsels request for an upgrade of the characterization of the applicants discharge was carefully considered.

2. After examining the applicants record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant’s discharge to honorable for the following reasons:

a. Length of service: The applicant served 4 years and 6 days of a 6-year enlistment, thus the preponderance of his service was honorable.

b. Quality of service: The record confirms the applicant received an ARCOM for a tour in combat.

3. This recommendation is 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 may now be too harsh and as a result inequitable.

4. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to honorable. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.

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: Yes [Redacted]

Witnesses/Observers: NA

Board Vote:
Character Change: 5 No Change: 0
Reason Change: 2 No Change: 3
(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) AR20140002987

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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