1. Applicant’s Name: a. Application Date: 29 April 2015 b. Date Received: 4 May 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable or general, under honorable conditions. The applicant seeks relief contending, in effect, he was accused of hitting an MP with his car but the charges were dropped due to lack of evidence. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. In a records review conducted at Arlington, VA on 29 July 2016, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant’s length of service, circumstances surround the discharge (i.e. pending PEB boardable medical condition), and information from prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 18 January 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 July 2010 (2) Basis for Separation: The applicant wrongfully and recklessly backed his vehicle and struck SPC M.S. in his hip with his vehicle. At the time of the incident, SPC M.S. was then in the execution of his duties as a Military Police Officer. (3) Recommended Characterization: Under Other Than Honorable Conditions. (4) Legal Consultation Date: 3 August 2010 (5) Administrative Separation Board: 13 October 2010 (6) Separation Decision Date/Characterization: 17 December 2010 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 29 February 2008 / 5 years b. Age at Enlistment/Education/GT Score: 22 / GED / 111 c. Highest Grade Achieved/MOS/Total Service: E-5 / 92R10, Parachute Rigger / 5 years, 2 months, and 4 days d. Prior Service/Characterizations: RA, 15 November 2005 – 28 February 2008 / HD e. Overseas Service/Combat Service: None f. Awards and Decorations: ARCOM, AAM-2, AGCM, GWTSM, ASR g. Performance Ratings: 1 April 2009 – 30 September 2009, Marginal h. Disciplinary Action(s)/Evidentiary Record: CG Article 15, dated 27 July 2009, for failing to obey a lawful general regulation by wrongfully failing to videotape jumpers during an airborne operation while they exited their aircraft. The punishment consisted of forfeiture of $503.46 pay per month for one month (suspended), extra duty for 14 days, restriction for 14 days (suspended), and an oral reprimand. Provo Police Department Follow-Up and Arrest Reports, dated 21 August 2009 and 22 August 2009, reflects the applicant was questioned regarding a complaint made on a male suspect attempting to open vehicles’ doors in the area and wandering around the yards and home of neighbors in the area. The reports indicate the applicant refused to provide any identification, when asked, and resisted arrest. Military Police Report, dated 3 May 2010, reflects the applicant was cited and apprehended for assault on a public official (military police) on post. Memorandum, dated 20 August 2010, Subject: Recommendations for Conditional Waiver, submitted by CPT B.L.T., Group Judge Advocate, reflects that the applicant submitted a conditional waiver request contingent on his characterization of service would be nothing less than general, under honorable conditions. The memorandum also reflects that the applicant’s commander, battalion commander, and group commander recommended disapproval of the request. Memorandum, dated 21 September 2013, Subject: Notification to Appear Before an Administrative Separation Board, reflects the applicant was notified of to appear before the Administrative Separation Board scheduled on 13 October 2010. Administrative Separation Board Summarized Transcript, dated 18 October 2010, reflects that the board carefully considered evidence before it and for the accusation that the applicant did in fact wrongfully and recklessly back up his vehicle and struck SPC M.S. in his hip with his vehicle, found that there was sufficient evident to support a finding of misconduct under the provisions of AR 635-200, Section III, Chapter 14-12(c). The Administrative Separation Board recommending, in view of the findings, that the applicant be eliminated from the service due to misconduct and that his discharge will be characterized as under other than honorable conditions. Joint DoD/VA Disability Evaluation Pilot Referral, dated 3 December 2010, reflects a Medical Evaluation Board action was completed on 3 December 2010, and was referred to Service Physical Evaluation Board. Counseling statements for misconduct and violations of the UCMJ. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: Chronological Record of Medical Care Health Record, dated 7 June 2010, indicates the applicant had chronic depression, adjustment disorder with anxiety, and depressed mood. MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 9 July 2010, reflects the applicant had a clear and normal thought process and was mentally responsible. The applicant was diagnosed with (Axis I) Occupational Problem and (Axis II) Diagnosis Deferred on Axis II. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 29 April 2014, DD Form 214; and eleven character letters. 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 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable or general, under honorable conditions. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant’s 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 command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance, such that he should have been retained. 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 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 29 July 2016, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant’s length of service, circumstances surround the discharge (i.e. pending PEB boardable medical condition), and information from prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General (Under Honorable Conditions) 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 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 AR20150008001 4