1. Applicant’s Name: a. Application Date: 20 July 2015 b. Date Received: 23 July 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. The applicant seeks relief contending, in effect, his case was based on a malicious case, which had been adjudicated by a civilian court. The civilian court found him not guilty of all the allegations. His command, in their decision totally ignored the truth and decided not to afford him a chance to defend his innocence. Additionally, the characterization of service has had adverse consequences, given that he is now a veteran with 40 percent disability, but cannot access VA benefits including education benefits. He is also a PHD student studying a doctorate in business administration with specialization in homeland security. Due to his discharge, he is not able to benefit from his military background and service to this great nation. In a records review conducted at Arlington, VA on 28 September 2016, and by a 5-0 vote, the Board determined the discharge was improper based on the overall length, to include his combat service, and the circumstances surrounding the discharge (i.e. was not given due process). Therefore, the discharge being improper, the Board granted relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF." This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 5 June 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 April 2014 (2) Basis for Separation: The applicant was informed of the following reasons: assaulted SPC M.M. by hitting her on the face with a closed hand (6 January 2013); disobeyed a lawful command from his superior officer to restrain from initiating any communication with SPC M.M. until further notice (6 January 2013); made a false official statement to first sergeant C.W. that SPC M.M. “may” have aborted her unborn child but he was not sure, or words to that effect, which statement, he knew to be false in that he paid for the abortion (8 February 2013); threatened to throw SPC M.M. from a moving vehicle and drive away if she did not follow through with the abortion (1 March 2012); willfully assaulted SPC M.M. by having sexual intercourse and transmitting chlamydia by capable negligence (30 July 2012); and, engaged in sexual intercourse with SPC M.M., a married woman, not his wife (between 1 October 2011 and 5 December 2012). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 29 April 2014 (5) Administrative Separation Board: On 29 April 2014, the applicant elected to appear before an administrative separation board and to be represented by military counsel. The applicant’s case separation packet does not include any evidence that the applicant ever appeared before an administrative separation board. (6) Separation Decision Date/Characterization: 16 May 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date/Period of Enlistment: 20 January 2010 / 4 years, 22 weeks b. Age at Enlistment/Education/GT Score: 24 / Bachelor’s Degree / 121 c. Highest Grade Achieved/MOS/Total Service: E-4 / 74D1P, Chemical Operations Specialist / 4 years, 4 months, 16 days d. Prior Service/Characterizations: None e. Overseas Service/Combat Service: SWA / Afghanistan (3 January 2011 - 1 May 2011) f. Awards and Decorations: ACM-CS, ARCOM, NATOMDL, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s)/Evidentiary Record: The applicant provided the following documents: Order of Dismissal, dated 21 December 2012, reflects the order of protection was dismissed and the evidence did not support a conclusion that the applicant was in contempt. Attorney letter, dated 7 May 2014, reflects the applicant retained a civilian attorney to represent him pursuant to chapter 14 proceedings. Two Developmental Counseling Statements (DA Form 4856), dated 13 December 2012 and 1 April 2014, for no contact or and decision to initiate separation proceedings. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; a copy of his separation packet; court documents, dated 21 December 2012; DA Form 638, dated 24 February 2011; a copy of his Enlisted Record Brief, dated 29 April 2014; copies of his military awards and certificates; a copy of his discharge order, dated 28 May 2014; VA letter, dated 20 February 2015; VA identification card; a copy of his degree plan, dated 1 July 2015; a copy of his passport; and, two DA Forms 4856. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is pursuing his Doctorate’s degree. 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 14-12b 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record shows that the proposed separation was initiated under the administrative board procedure with the members of the chain of command below the separation authority recommending an under other than honorable characterization of service. The applicant consulted with legal counsel, on 29 April 2014, and elected to appear before an administrative separation board and to be represented by military counsel. There is no indication in the record that the applicant waived that right. Four days after the last chain of command recommendation for an under other than honorable conditions characterization, the separation authority approved the Soldiers separation with a general, under honorable conditions discharge. The separation authority was apparently under the mistaken belief he could approve a general discharge in lieu of an administrative separation board being conducted as he was provided that option. In doing so the applicant was deprived of his due process right to an administrative separation board which renders the separation improper. The applicant contends that an upgrade would allow him to have better job opportunities and VA benefits to include the benefit of the GI Bill. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, 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 discharge was not consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 September 2016, and by a 5-0 vote, the Board determined the discharge was improper based on the overall length, to include his combat service, and the circumstances surrounding the discharge (i.e. was not given due process). Therefore, the discharge being improper, the Board granted relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF." This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, Chapter 5-3 e. Change SPD/RE Code to: Change SPD code to JFF / No Change to RE code f. Restore Grade to: No Change 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 AR20150012195 4