AR20160000954

1. Applicants Name:

a. Application Date: 29 October 2015

b. Date Received: 10 December 2015

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general, under honorable conditions discharge to honorable, and to change the narrative reason for his discharge. The applicant states, in pertinent part and in effect, although the Army knew about his Attention Deficit Hyperactivity Disorder (ADHD) medical issue, he was never treated for it. He should have been medically discharged or at least with an honorable discharge. He asserts that ADHD was the problem, not willful misconducthe was diagnosed with ADHD in November 2004 when he was being discharged. The National Institute of Mental Health shows how his medical condition affected him into his adult life while in the service and affected his ability to follow orders. He is currently working at the same job for 10 years and wishes to enlist in the Army National Guard.

Per the Board’s Medical Officer, based on the information available for review and the applicant’s testimony, it is likely that he was challenged with an untreated or undertreated condition which was incompatible with service in the Army. More likely than not, the applicant’s misconduct was associated with the condition. The applicant explained how he was diagnosed with ADHD in adolescence but was taken off medication at some point prior to enlistment. He was advised not to reveal his diagnosis of ADHA due to stigma and fear of separation. He reached the rank of E-5 and was able to achieve nearly four years of service. The psychiatrist at the Mental Health Evaluation dated 22 November 2002 stated that had his ADHD been correctly reported when he was first recruited, it most likely would have been administratively disqualifying.

In a personal appearance conducted at Arlington, VA on 11 July 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s testimony, length and quality of service, and the circumstances surrounding his discharge (i.e. the applicant was allowed to enter military service with a disqualifying behavioral health condition) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, change to the narrative reason for separation to Secretarial Authority, and the SPD code to JFF.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason/Authority/Codes/Characterization: Misconduct / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions

b. Date of Discharge: 14 January 2003

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 10 December 2002

(2) Basis for Separation: The applicant was informed of the following reasons, in violations of the UCMJ:

violating Article 128, for an assault;

violating Article 87, for missing movement;

violating Article 92, for failing to obey a lawful order;

violating Article 91, for disrespecting an NCO; and

violating Article 86, for failing to be at his appointed place of duty at the prescribed time on multiple occasions.

(3) Recommended Characterization: General, Under Honorable Conditions

(4) Legal Consultation Date: 11 December 2002

(5) Administrative Separation Board: None

(6) Separation Decision Date/Characterization: 27 December 2002 / General, Under Honorable Conditions

4. SERVICE DETAILS:

a. Date/Period of Enlistment: 16 February 1999 / 4 years

b. Age at Enlistment/Education/GT Score: 19 / GED / 120

c. Highest Grade Achieved/MOS/Total Service: E-5 / 55B10, Ammunition Specialist / 3years, 10 months, and 29 days

d. Prior Service/Characterizations: None

e. Overseas Service/Combat Service: None

f. Awards and Decorations: NDSM; ASR

g. Performance Ratings: None

h. Disciplinary Action(s)/Evidentiary Record:

CG Article 15, 1 May 2002, for failing to be at his appointed place of duty at the prescribed time on 26 April 2002. The punishment consisted of a reduction to E-3 (suspended), and 14days of extra duty and restriction.

Revocation of Pass Privileges memorandum, dated 3 July 2002, indicates the applicants privileges were revoked while his UCMJ packet was being processed.

Record of Supplementary Action under Article 15, UCMJ, dated 13 August 2002, indicates the punishment of a reduction to E-3 imposed on 1 May 2002, was vacated due to the applicant violating Article 92, UCMJ, by being derelict in the performance of his gate guard duty on 17July 2002.
FG Article 15, dated 28 August 2002, for failing to be at his appointed place of duty at the prescribed time on three separate occasions on 18 June 2002, 20 June 2002, and 21 June 2002; being derelict in the performance of his duties on 17 July 2002; and assaulting PVT E on 17 June 2002. The punishment consisted of a reduction to E-2, forfeiture of $619 (suspended), and 30 days of extra duty and restriction.

Negative counseling statements for disobeying a lawful order; disrespecting an NCO; failing to be at his appointed place of duty at the prescribed time on numerous occasions; being AWOL; missing movement; being insubordinate towards an NCO; using provoking speeches or gestures; uniform not being up to standard; not shaving prior to formation; and being late for corrective training.

i. Lost Time: None

j. Diagnosed PTSD/TBI/Behavioral Health:

Report of Medical History, dated 19 November 2002, indicates the applicant noted that he was being evaluated and treated for ADHD, and the examiner indicated the applicant was diagnosed with ADHD at age 15.

Memorandum for the commander, dated 22 November 2002, indicates the applicant had prior history and current symptoms of ADHD and that the applicant was psychiatrically cleared for administrative separation; that ADHD was not a medically boardable diagnosis but that it was administratively disqualifying. Further, that if his ADHD diagnosis had been reported correctly when he was first recruited, it would most likely have been administratively disqualifying. The medical doctor concluded he was restarting the medication that was effective for him prior to his enlistment.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; WebMD ADHD definition article; National Institute of Mental Health ADHD article (pages 1 to 7, and 9 and 10); memorandum for the commander, dated 22 November 2002; Report of Medical History, dated 19 November 2002; and page 1 of DA Form 2-1 (Personnel Qualification Record (PQR)).

6. POST SERVICE ACCOMPLISHMENTS: The applicant has been employed at the same job for ten years.

7. REGULATORY CITATION(S): 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.

Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JKQ” will be assigned an RE Code of 3.

Secretary of Defense Memorandum for Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014, by implication provided the same guidance to the Service Discharge Review Boards whose decisions are reviewable by the Service Correction Boards. That memorandum provided PTSD or PTSD-related conditions “will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.” However, the memorandum also states, “Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in the discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.”

8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general, under honorable conditions discharge to honorable, and to change the narrative reason for his discharge. The applicants record of service, and the issues and documents submitted with his application were carefully reviewed.

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.

The applicant provided no independent corroborating evidence demonstrating that either the commands action was erroneous or that the applicants service mitigated the misconduct or poor duty performance, such that he should have been retained.

The applicant contends he should have been medically discharged; 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. Further, the available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.

Furthermore, a careful review of the applicant’s record and documentary evidence indicates the applicant’s behavioral health issues and diagnosis of ADHD, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant’s behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service.

The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is Misconduct (Serious Offense), and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation.

In consideration of the applicant’s post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant an upgrade of the characterization of his discharge.

The applicant desires to rejoin the military service, the Army National Guard. However, 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 are 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. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process.

9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted no additional documents or contentions.

b. Witness(es)/Observer(s): None

10. BOARD DETERMINATION: In a personal appearance conducted at Arlington, VA on
11 July 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s testimony, length and quality of service, and the circumstances surrounding his discharge (i.e. the applicant was allowed to enter military service with a disqualifying behavioral health condition) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, change to the narrative reason for separation to Secretarial Authority, and change the SPD code to JFF.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: Yes

b. Change Characterization to: Honorable

c. Change Reason to: Secretarial Authority

d. Change SPD/RE Code to: JFF/No Change to RE-Code

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
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
BH Behavioral Health HD – Honorable Discharge OAD – Ordered to Active Duty SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OMPF – Official Military Personnel File TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police PTSD Post-Traumatic Stress Disorder UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma RE – Reentry UOTHC – Under Other Than Honorable Conditions
FG – Field Grade Article 15

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160000954

6