1. Applicant’s Name: a. Application Date: 4 August 2015 b. Date Received: 6 August 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade his under other than honorable conditions discharge to honorable and to change the separation authority to reflect “Chapter 4.” The applicant requests restoration of his rank and compensation for his 58 days of leave. The applicant seeks relief contending, in pertinent part and in effect, his discharge was improper because it was executed past his expiration of term of service (ETS) date of 13 July 2015. The process of his discharge violated both the letter and spirit of AR 635-200. On 20 October 2014, he was convicted of larceny by a Korean court and fined 3,000.00.00 Won (approximately $2,700.00). On 13 May 2015, he was notified of being recommended for separation under the provisions of AR 635-200, paragraph 14-9. However, no action was taken for the next three months. On 16 July 2015, he paid his fine and the international hold on him was lifted. On 20 July 2015, his chain of command began to process an extension of his ETS date so the unit could properly out-process him. The DA Form 4187 (Personnel Action) explicitly stated he was no longer pending an involuntary separation. On 22 July 2015, his ETS date was extended to 27 July 2015. The following day, the GCMCA separated him UP Chapter 14, paragraph 14-9, with a UOTHC characterization of service, and he was not allowed compensation for his 58 days of leave. His separation, in violation of paragraph 1-26, also did not fall under any exceptions of Section IV, Chapter 1, AR 635-200, nor was his ETS date extended UP paragraphs 1-21 and 1-24. It should have, instead, been extended UP paragraph 1-27. However, he never signed a statement making any choices, nor was he advised of his right to make a choice. 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 conditions for the offenses. The applicant was seen by ASAP for Alcohol Dependence from August 2013 until June 2015. Mental Status Exam from February 2015 indicated Alcoholism. He met medical retention standards and was psychiatrically cleared. In a records review conducted at Arlington, VA on 28 September 2016, and by a 5-0 vote, the Board determined the characterization of service was inequitable. The evidence of record supports the applicant was discharged after the expiration term of service date (ETS). Army Regulation 635-200, states that only an honorable characterization of service may be awarded a Soldiers upon completion of their period of enlistment, and that retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized. The Board found the applicant served his entire enlistment and the chain of command had the option to allow him to be separated by reason of ETS. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade/rank to E-4/SPC. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct (Civil Conviction) / AR 635-200, Chapter 14, Section II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 3 August 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 April 2015 (2) Basis for Separation: The applicant was found guilty by the Uijeongbu District Court of larceny. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 May 2015 (5) Administrative Separation Board: Voluntarily waived, 12 May 2015 (6) Separation Decision Date/Characterization: 23 July 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 14 July 2009 / 6 years b. Age at Enlistment/Education/GT Score: 23 / Associate’s Degree / 101 c. Highest Grade Achieved/MOS/Total Service: E-5 / 25V10, Combat Documentation/ Production Specialist / 6 years and 20 days d. Prior Service/Characterizations: None e. Overseas Service/Combat Service: Korea, SWA / Afghanistan (30 March 2011 – 29 August 2011 and 12 February 2012 – 29 July 2012) f. Awards and Decorations: JSCOM-2, AAM-2, AGCM-2, NDSM-2, ACM-2CS, GWOTSM, KDSM, NCOPDR, ASR, OSR-3, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s)/Evidentiary Record: Civilian District Court Summary Order, dated 29 October 2014, indicates the applicant was found guilty of a larceny charge and was sentenced to a fine of 3,000,000 Won. DD Form 2807-1 (Report of Medical History), dated 17 February 2015, reflects the applicant reported having depression or excessive worry and evaluated or treated for a mental condition. DA Form 4856 (Developmental Counseling), dated 10 April 2015, for being recommended for an involuntary separation, and his responsibilities to comply and complete the separation checklist. Memorandum, dated 16 July 2015, Subject: Removal of the International Hold, indicates “the international hold previously imposed on [the applicant] was hereby removed.” Orders 208-0002, dated 27 July 2015, indicates a discharge date of 3 August 2015. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: DA Form 3822 (Report of Mental Status Evaluation), dated 27 February 2015, reflects the applicant was diagnosed with (Axis I) Alcohol Dependence and was being treated by ASAP for alcohol dependence. He was psychiatrically cleared for any administrative action deemed appropriate by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, dated 3 September 2015, with a self-authored statement; DD Form 214; and the following: Memorandum, dated 3 November 2014, Subject: ROK Summary Order; Uijeongbu District Court Summary Order, dated 29 October 2014; Memorandum For Record, dated 20 June 2015, Subject: Extension; DA Form 31 (Request and Authority for Leave); Memorandum, dated 16 July 2015, Subject: Removal of the International Hold; Memorandum For Record, dated 22 July 2015, Subject: Failure to Separate by ETS date; DA Form 4187 (Personnel Action) for ETS Adjustment, dated 22 July 2015; Memorandum, dated 22 July 2015, Subject: Temporary ID Card; Data printout with new ETS: 20150727; GCMCA Memorandum, dated 23 July 2015, Subject: Separation Under AR 635-200, Chapter 14-9, Foreign Convictions; and, AR 635-200 extract copy of page 20. 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 14-9 addresses procedure for civil court cases in foreign countries, and that major overseas commanders may approve discharge of Soldiers convicted by a foreign tribunal. Paragraph 1-27 addresses procedure for retention in service while subject to criminal jurisdiction of foreign courts but not physical confined by such courts. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, paragraph 14-9, Misconduct (Civil Conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade his under other than honorable conditions discharge to honorable and to change the separation authority to reflect “Chapter 4.” The applicant requests restoration of his rank and compensation for his 58 days of leave. The applicant’s record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant was charged with and convicted of the commission of larceny and was sentenced by a foreign court. The sentence consisted of a monetary fine and no confinement. The record also confirms the applicant’s involuntary separation proceedings was initiated on 13 May 2015, for being convicted by a foreign court and a recommendation for a UOTHC characterization of service. The record reflects the applicant’s ETS date was 13 July 2015. However, the applicant did not pay the court imposed fine until 16 July 2015, and on the same day, the international hold placed on the applicant was removed. The applicant’s submitted evidence, DA Form 4187 (Personnel Action), dated 22 July 2015, shows the applicant requested an “ETS Adjustment,” and the unit commander indicated, in pertinent part, the justification was due to the applicant passing his ETS date due to pending involuntary separation and international hold,” and that the applicant was “no longer pending involuntary separation and sufficient time was need for him to clear the installation.” An extension until 27 July 2015, was granted, and the applicant was placed on an involuntary leave from the date of his original ETS until his separation, or until 27 July 2015. Subsequently, on 23 July 2015, the separation authority (the GCMCA), approved the discharge with a UOTHC characterization of service and an emphasis to separate the applicant no later than 10 days from 23 July 2015. The applicant was separated on 3 August 2015. Army Regulation 635-200, paragraph 1-27b states a Soldier's consent for retention beyond his ETS will be filed in the OMPF; however, no copy appears in the applicant’s OMPF. Paragraph 1-27c indicates that if the Soldier's consent to extend his ETS is not obtained, instructions from HQDA should be sought before the Soldier's ETS. There is no indication the command did so before the Soldier's ETS. In view of the foregoing, evidence confirms that the applicant was retained on active duty beyond his adjusted expiration term of service (ETS) date. The record further indicates he was not pending court-martial charges and therefore, he was not eligible to be retained for the purpose of an administrative discharge. AR 635-200, paragraph 1–26 states that retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized. The applicant requests to be compensated for his 58 days of leave. However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not 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 characterization of service was inequitable. The evidence of record supports the applicant was discharged after the expiration term of service date (ETS). Army Regulation 635-200, states that only an honorable characterization of service may be awarded a Soldiers upon completion of their period of enlistment, and that retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized. The Board found the applicant served his entire enlistment and the chain of command had the option to allow him to be separated by reason of ETS. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade/rank to E-4/SPC. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: E-4/SPC 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 AR20150013902 1