AR20160013103

1. Applicants Name:

a. Application Date: 13 July 2016

b. Date Received: 18 July 2016

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, his discharge was inequitable because it was based on assumptions and false statements by investigators and other parties involved. The applicant contends that everything was biased and that he was not given a polygraph test as requested.

In a personal appearance hearing conducted at Atlanta, 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions)

b. Date of Discharge: 18 June 2015

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 1 April 2015

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

unlawfully pushed J.H. into an air conditioning unit with his hands causing her to fall to the ground (10 November 2014);

committed an assault upon J.H., by striking her in the face with a closed fist and did thereby intentionally inflict grievous bodily harm upon her (10 November 2014);

committed an assault upon J.H., by choking her with his hands and forcibly striking her head on the ground and did thereby intentionally inflict grievous bodily harm upon her (10 November 2014); and

unlawfully assaulted J.H. by grabbing both arms and threw her on the bed, placed his right forearm on her throat and placed his left hand over her mouth and nose, pushed her against the air conditioning unit, and threw her on the bed (19 January 2015).

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

(4) Legal Consultation Date: 2 April 2015

(5) Administrative Separation Board: NA

(6) Separation Decision Date / Characterization: 20 April 2015 / General (Under Honorable Conditions)

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 1 October 2013 / 3 years, 23 weeks

b. Age at Enlistment / Education / GT Score: 22 / GED / 95

c. Highest Grade Achieved / MOS / Total Service: E-3 / 92F10, Petroleum Supply Specialist / 1 year, 8 months, 18 days

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: Military Police Report, dated 10 November 2014, reflects the applicant was under investigation for criminal obstruction of breathing or blood circulation, aggravated assault, communicating a threat, wrongful damage to private property and domestic disturbance, on post.

CG Article 15, dated 26 February 2015, for assaulting J.H. (all on 10 November 2014). The punishment consisted of forfeiture of $425 pay.

The applicant received several negative counseling statements for domestic violence and being recommended for administrative separation.

i. Lost Time / Mode of Return: None

j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 2 February 2015, reflects that the applicant was diagnosed with (Axis I) Partner Relational Problem. The applicant met medical retention standards in accordance with AR 40-501. He screened negatively for all psychiatric disorders including PTSD, mood disorders, anxiety disorders, psychotic disorders, and personality disorders; and he also screened negatively for mTBI. He was responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings. He was cleared for participation in administrative proceedings.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293

6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application.

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 14-12c 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.

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. The applicants record of service and the issues 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 misconduct (serious offense), 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 contends that his discharge was inequitable because it was based on assumptions and false statements by investigators and other parties involved. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.

The applicant also contends that everything was biased. Although the applicant alleges that he was a victim of bias during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

The applicant further contends that he was not given a polygraph test as requested. The service record contains no evidence that he requested a polygraph test and the applicant did not submit any evidence to support the contention that he requested a test.

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.

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: Ms. Jasymne Hyatt (Spouse)

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Atlanta, 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
AR20160013103

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