IN THE CASE OF: BOARD DATE: 24 August 2015 CASE NUMBER: AR20150001899 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, and considering the Discussion of Issues which follows, the Board determined the discharge to be proper and equitable and voted to deny relief. 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade to the characterization of his service from under other than honorable to honorable, and a change to the narrative reason for his discharge. He also requests to be retired at the grade of E-7, granted constructive service credit sufficient for retirement, and reimbursed all pay and allowances, and to have all property in possession of the CID returned. 2. The applicant states, in pertinent part and in effect, there were multiple errors that were substantially prejudicial in his case. The evidence against him at the separation board was insufficient and based on hearsay and an incomplete police report. A state court subsequently exonerated him of the allegations. His former first sergeant provided new evidence that is exculpatory for him. The basis for his discharge were allegations that he assaulted a Mr. A., that he participated in a criminal activity associated with a street gang, and that he had fled the scene of the crime. However, all the allegations are untrue. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 30 January 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 2 March 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Co, Operations Group, NTC, Fort Irwin, CA f. Current Enlistment Date/Term: 8 April 2005, Indefinite g. Current Enlistment Service: 6 years, 5 months, 4 days h. Total Service: 20 years, 29 days i. Time Lost: 174 days j. Previous Discharges: RA (910813-951226) / HD RA (951227-980317) / HD RA (980318-000321) / HD RA (000322-030326) / HD RA (030327-050407) / HD k. Highest Grade Achieved: E-7 l. Military Occupational Specialty: 91X40, Maintenance Supervisor; 91L40, Construction Equipment Repairer; 63B4P, Wheeled Vehicle Mechanic m. GT Score: NIF n. Education: HS Graduate and a year of college o. Overseas Service: SWA p. Combat Service: Iraq (071015-090105), (050118-060109) and Somalia (930830-931222), q. Decorations/Awards: BSM, ARCOM-6, JSAM, AAM-7, AGCM-6, NDSM-BSS, AFEM, ICM-CS, KCM-BSS, GWOTEM, GWOTSM, KDSM, HSM, NPDR-3, ASR, OSR-4, NATO MDL, CAB r. Administrative Separation Board: Yes s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 13 August 1991, and reenlisted five times. The latter reenlistment was on 8 April 2005, for an indefinite period. He was 20 years old at the time of entry and a high school graduate and a year of college. He was trained in and awarded military occupational specialties (MOSs) 91X40, Maintenance Supervisor; 91L40, Construction Equipment Repairer; and 63B4P, Wheeled Vehicle Mechanic. He served in Iraq and Somalia. He earned a BSM, six ARCOMs, a JSAM, and seven AAMs. He completed 20 years and 29 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 5 August 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense), specifically for assaulting Mr. A (110425), participating in criminal activity associated with a street gang, and fleeing the scene of a crime. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 10 August 2011, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board. The applicant elected not to submit a statement on his own behalf; however, statements and matters on his behalf were provided by his counsel. 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 an under other than honorable conditions discharge. 4. On 30 August 2011, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 27 September 2011, the administrative separation board convened and the applicant’s counsel appeared on behalf of the applicant who was in civilian confinement. The board found the applicant did wrongfully participated in criminal activity associated with a street gang and fled the scene of a crime, and recommended the applicant’s discharge with characterization of service of under other than honorable conditions. 6. On 17 October 2011, the GCMCA concurred with the separation board’s findings and recommendations and forwarded the separation case file to the ASA (M&RA) for final decision. 7. On 8 February 2012, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 8. The applicant was discharged from the Army on 2 March 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ, and an RE code of 3. 9. The applicant’s record of service indicates 174 days of time lost for being confined by civil authorities from 25 April 2011 through 15 October 2011. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are no negative counseling statements or actions under the Uniform Code of Military Justice in the record. 2. Separation board proceedings. 3. Report of Mental Status Evaluation, dated 14 December 2011, indicates the applicant was diagnosed with anxiety D/O, NOS, R/O PTSD and depressive disorder NOS, and that the screenings for PTSD and TBI were positive. 4. A civilian police report and a CID report, dated 2 May 2011 and 26 April 2011, indicate the applicant was the subject of an investigation for assault. 5. Service School Academic Evaluation Report, dated 29 May 2009, indicates the applicant exceeded the course standards of the ANCOC course. 6. Eight NCOERs rendered during the period under current: a. A “Change of Rater” report covering the period of 1 June 2010 to 28 February 2011. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. b. An “Annual” report covering the period of 1 June 2009 to 31 May 2010. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. c. A “Change of Rater” report covering the period of 1 January 2009 to 31 May 2009. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. d. An “Annual” report covering the period of 1 January 2008 to 31 December 2008. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. e. An “Annual” report covering the period of 1 January 2007 to 31 December 2007. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. f. A “Change of Rater” report covering the period of 1 October 2006 to 31 December 2006. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. g. An “Annual” report covering the period of 1 October 2005 to 30 September 2006. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. h. An “Annual” report covering the period of October 2004 to September 2005. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an attorney-authored statement; separation packet with CID Report but no medical records; a statement by Mr. H, dated 15 November 2014; and an undated civilian court document showing an acquittal of two charges. POST-SERVICE ACTIVITY: The applicant provided none. 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 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. 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 Soldier’s 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). 5. 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. DISCUSSION: 1. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered. 2. After examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, the following mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions were considered: a. Length and quality of service: The applicant served over 20 years and the preponderance of his service was honorable. b. The record confirms the applicant received several awards, specifically a BSM, six ARCOMs, a JSAM, and seven AAMs, some which were for his tour in combat. c. The circumstances surrounding the applicant’s discharge and documentary evidence indicate he had ongoing medical issues while on active duty, and was diagnosed with PTSD. 3. The applicant contends the narrative reason for the discharge should be changed. However, the findings of the separation board that he wrongfully participated in criminal activity associated with a street gang and fled the scene of a crime were the subsequent basis for his discharge. There is also 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or sufficient evidence has been provided with the request for an upgrade and to change the narrative reason for his discharge. 4. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 5. 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 records show the proper discharge and separation authority procedures were followed in this case. 6. Regarding the applicant’s requests to be granted constructive service credit sufficient for retirement and reimbursed of all pay and allowances, and to have all property in possession of the CID returned, consideration of those requests do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 7. In view of the foregoing, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and that the applicant was provided full administrative due process. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 24 August 2015 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: The applicant submitted no additional documents or contentions. 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. Board Vote: Character Change: 1 No Change: 4 Reason Change: 0 No Change: 0 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change 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) AR20150001899 Page 6 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1