AR20160012059

1. Applicants Name:

a. Application Date: 4 May 2016

b. Date Received: 5 July 2016

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his from general (under honorable conditions) discharge to honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, he served his country in a time of war and he volunteered for the infantry without regard for his life and feels that alone is honorable. The applicant contends that had he not been discharged, he would have matured and continued to serve his country. He is unable to use his G.I. Bill and has $60,000 in student loans. The applicant contends that he was discharged instead of being offered counseling or any other option and that he was too young and naive to understand what the ramifications were for drinking and driving. He desires to rejoin the service.

Per the Boards Medical Officer, based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. The applicant was separated for misconduct general (under honorable conditions) for service from 18 February 2004 through 17 March 2005. Per memorandum, dated 22 February 2005, separation under AR 635-200 initiated for Field Grade Article 15 on 16 December 2004, for violating a lawful general regulation (on or about 24 November 2004 consuming alcohol under age 21); and on 21 January 2005 convicted by Summary Court-Martial of being AWOL, disobeying a noncommissioned officer and violating a lawful general regulation. Report of Medical Examination (DD Form 2808), dated
23 October 2003, with mild asymptomatic pes planus otherwise unremarkable. Security Clearance Application (Standard Form 86) noted Minor in Possession (MIP) x 5 (last March 2003) (applicant didnt recall any underage legal/police encounters). Enlisted at age 17 years. The electronic medical records (AHLTA) were reviewed and no patient encounters, clinical notes, or radiology reports found. Lab results from 2004-2005 were unremarkable (Note: AHLTA implementation began in 2003 and was still in progress across the Army in 2005). Report of Medical History (DD Form 2807-1), dated 12 January 2005, was unremarkable. Report of Medical Assessment (DD Form 2697), dated 12 January 2005, remarkable for knee pain since a 25 mile road march. Report of Medical Examination (DD Form 2808), dated
12 January 2005, and examined by provider on 25 January 2005 was remarkable for left knee mild joint-line tenderness, PULHES-111111. Report of Mental Status Evaluation (DA Form 3822-R), dated 27 January 2005, with diagnosis on Axis I: Alcohol Abuse, continuous; Axis II: Antisocial traits: Axis III: knee pain. The applicant met medical retention standards IAW (in accordance with) Chapter 3, Army Regulation (AR) 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicants era of service.

In a personal appearance hearing conducted at Warner Robins, GA on 17 November 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions)
b. Date of Discharge: 17 March 2005

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 22 February 2005

(2) Basis for Separation: The applicant was informed of the following reasons:

received a FG Article 15 for violating a lawful general regulation (16 December 2004); and,

convicted by a Summary Court-Martial of being AWOL, disobeying a noncommissioned officer, and violating a lawful general regulation (21 January 2005).

(3) Recommended Characterization: General (Under Honorable Conditions)

(4) Legal Consultation Date: NIF, based on the applicants acknowledgement memorandum, dated 22 February 2005, the applicant waived legal counsel.

(5) Administrative Separation Board: NA

(6) Separation Decision Date / Characterization: 1 March 2005 / General (Under Honorable Conditions)

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 18 February 2004 / 4 years

b. Age at Enlistment / Education / GT Score: 17 / GED / 103

c. Highest Grade Achieved / MOS / Total Service: E-1 / 11C10, Indirect Fire Infantryman / 1 year, 1 month

d. Prior Service / Characterizations: None

e. Overseas Service / Combat Service: None

f. Awards and Decorations: NDSM, GWOTSM, ASR

g. Performance Ratings: NA

h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 16 December 2004, for violating a lawful general regulation by wrongfully consuming alcohol while under the age of 21 (24 November 2004). The punishment consisted of forfeiture of $596 per month for two months and 45 days of restriction and extra duty.

Summary Court-Martial, dated 21 January 2005, reflects the applicant was found guilty of disobeying a noncommissioned officer and violating a lawful general regulation; however, the sentence is not contained in the available record.

The applicant received a negative counseling statement for being found guilty at Summary Court-Martial and recommended for separation for separation under Chapter 14.

i. Lost Time / Mode of Return: None
j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 27 January 2005, reflects the applicant was diagnosed with (Axis I) Alcohol Abuse, continuous and (Axis II) antisocial traits. The report provides the results of a general mental health assessment, which includes the presence, absence, or history of psychiatric illness, personality disorder, marital or family problems, and alcohol or other substance abuse. The applicant was psychiatrically cleared for actions that command sees fit without reservation and recommend he participate the ASAP Program until discharged.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; three support statements; State of New York, BAC data mast; Defense counsel, objection to evidence, motion to dismiss, and request for credit for illegal pretrial punishment; applicants sworn statement; and congressional documents.

6. POST SERVICE ACCOMPLISHMENTS: The applicant has earned his Bachelors of Science Degree in Information Technology and Project Management.

7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation.

Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army.

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.

The SPD Code/RE Code Cross Reference Table shows a Soldier assigned an SPD Code of “JKA” 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), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members discharges.

Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre-existing conditions which are determined not to have been incurred or aggravated while in military service.

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

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 documented pattern of misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation.

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, such that he should have been retained on Active Duty.
The applicant requested a change to the narrative reason for separation. 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. The regulation further stipulates that no deviation is authorized.

The applicant contends that he served his country in a time of war and he volunteered for the infantry without regard for his life and feels that alone is honorable. The applicants service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.

The applicant also contends that had he not been discharged, he would have matured and continued to serve his country. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

The applicant contends that he is unable to use his G.I. Bill and has $60,000 in student loans.
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.

The applicant contends that he was discharged instead of being offered counseling or any other option and that he was too young and naive to understand what the ramifications were for drinking and driving. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

The applicant desires to rejoin the service. 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 third party statements provided with the application speak highly of the applicant. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicants chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity.

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 documents 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 hearing conducted at Warner Robins, GA on 17 November 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: No

b. Change Characterization to: No Change

c. Change Reason to: No Change

d. Change SPD / RE Code to: No Change

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 NCO Noncommissioned Officer 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 NOS Not Otherwise Specified SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OAD – Ordered to Active Duty TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police OMPF – Official Military Personnel File UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma PTSD Post-Traumatic Stress Disorder UOTHC – Under Other Than Honorable Conditions
FG – Field Grade Article 15 NA – Not applicable RE – Reentry VA Veterans Affairs
ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160012059

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