1. Applicant's Name: a. Application Date: 28 January 2016 b. Date Received: 22 February 2016 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. The applicant seeks relief contending, in effect, after a discussion with his assigned military counsel regarding the action to separate him under AR 635-200, Chapter 14-5 for misconduct resulting in civilian conviction, on 22 July 2014, he signed a memorandum (Rights Election Response) conditionally waiving his Administrative Separation Board, if he were given a general discharge. He understood and initialed all 13 parts of the memorandum and let the Army know that he was in the process of appealing his conviction. Added to that memorandum were two letters pertaining to this matter. On 3 December 2014, the Office of the Judge Advocate sent him a memorandum notifying him to appear before an Administrative Separation Board, which was convening on 4 December 2014. Due to security issues at this facility, he could not make it, so it was postponed until 8 December 2014. Per an agreement, he met via a telephone call with the Administrative Separation Board on 8 December 2014. When he was given the opportunity to speak, he informed the Board that he was going back to court to have a new trial; and, that no decision had been made by the court. Therefore, there was no basis to support the initiation of separation proceedings or for the Board to consider discharging him. Afterwards, the Board took several minutes, they made a decision to put his discharge on stand-by until his case was resolved, meaning that he would still be an Active Duty member without pay, which he accepted. On 31 December 2014, he sent a request to the Army Human Resources Command pertaining to his military records. In addition to his medical/dental records, he requested a written report of the decision taken by the Administrative Separation Board about his discharge, which took place on 8 December 2014. On 2 March 2015, he received his DD Form 214, which reflected he was discharged under AR 635-200, Chapter 14, Section II, resulting in a characterization of service of under other than honorable conditions due to a civil conviction caused by a misconduct. The applicant questions what happened with the decision by the Administrative Separation Board on 8 December 2014. He states he is not fighting for any compensation; he is fighting for something more valuable than money, which are his values, honor, integrity, and last, but not least, justice. In a records review conducted at Arlington, VA on 14 July 2017, 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 (Civil Conviction) / AR 635-200 / Chapter 14, Sec II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 23 January 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: Under Other Than Honorable Conditions / Based on the Rights Election Response, dated 25 July 2014, provided by the applicant. (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 25 July 2014, the applicant conditionally waived consideration of his case before an Administrative Separation Board, contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 4 August 2014, the applicant was notified to appear before an Administrative Separation Board and advised of his rights. Based on the notification to appear before the Administrative Separation Board memorandum, the Administrative Separation Board convened on 4 December 2014. However, according to the applicant's statement the Board was delayed until 8 December 2014, where he was allowed to appear telephonically due to his incarceration. The Board's decision is void from the applicant's service record. On 23 January 2015, the separation authority approved the findings and recommendations of the Administrative Separation Board and directed the applicant's discharge with a characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 23 January 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 July 2009 / 4 years b. Age at Enlistment / Education / GT Score: 26 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 1 year, 10 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders, dated 24 July 2013, reflect the applicant was reassigned to the Personnel Control Facility, Fort Sill, Oklahoma, with a reporting date of 24 July 2013. The order noted that the reassignment was administrative as the applicant was incarcerated at the Martin Correctional Institution, Florida. Orders, dated 21 November 2013, reflects the applicant was reduced from E-3 to E-1. The Authority cited reflects "Civilian Charges, IAW AR 600-9-19, Para 7-3 and Table 7-2." Personnel Action form, dated 21 November 2013, reflects the applicant's duty status changed from "Present for Duty" to "Confined By Civilian Authorities," effective 12 May 2011. i. Lost Time / Mode of Return: 1,352 days (Confined by Civil Authorities, 12 May 2011 - 23 January 2015) j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, with all allied documents listed in block 9 of the application. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's contentions about requesting a conditional waiver to not appear before the Administrative Separation Board, contingent upon him receiving a general, under honorable conditions discharge, were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity. Further, the applicant appeared, albeit telephonically, before the Administrative Separation Board, which indicates the separation authority did not approve his conditional waiver. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. At the time of the applicant's discharge, he had been confined by civilian authorities for 3 years, 8 months and 11 days. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 14 July 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change f. Restore (Restoration of) Grade to: No Change Authenticating Official: 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 AR20160004771 1