1. Applicant's Name: a. Application Date: 1 March 2016 b. Date Received: 14 March 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, he believes the record is in error and also unjust because there were legal flaws in the charges that were presented against him. He was separated unfairly from the Army and the military police made several errors in processing him. He was charged with driving under the influence (DUl) when actually there was no evidence of a DUI; because the military police never performed a proper BAC breathalyzer or a blood draw. There was a total lack of evidence in this case. Per the Board Medical Officer, AHLTA files indicate that applicant was seen frequently by ASAP while on active duty. His initial contact with ASAP began after he received a DWI. His diagnosis is listed as Alcohol Use Disorder. He screened negative for TBI and PTSD. No Behavioral Health diagnoses are found within his AHLTA notes. JLV states he is 20% service-connected but does not state what he is service-connected for. JLV Problem List contains only AHLTA diagnoses. Based on the information currently available, the applicant does not have a mitigating Behavioral Health disorder for the misconduct leading to his discharge from the Army. In a records review conducted at Arlington, VA on 23 August 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 3 August 2015 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 14 April 2015 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; physically control a vehicle, a passenger car while drunk (31 January 2015). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 April 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 June 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 April 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Specialist / 2 years, 3 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Military Police Report, which indicates the applicant was the subject of an investigation dated 31 March 2015, for drunken driving (refusal), possession of open container while operating a vehicle, defective taillights and underage drinking, on post. An administrative General Officer Memorandum of Reprimand, dated 10 March 2015, a Military Police officer observed him operating a motor vehicle with a broken tail light. Upon contact, the officer detected a strong odor of an alcoholic beverage emitting from his person. He was administered a series of standardized field sobriety tests, which he failed. While conducting a search of his vehicle, the officer discovered an open container in the passenger area of the vehicle. After being read the Georgia Implied Consent Law, he refused to submit to a breathalyzer test. At the time of the incident, he had not yet reached the age of 21 years. As a result, he was cited for drunken driving, possession of an open container while operating a motor vehicle, defective taillights, and underage drinking. A negative counseling statement for driving under the influence of alcohol. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 11 February 2015, relates that the applicant had an Axis I diagnosis of an alcohol disorder and an occupational problem. He met retention standards prescribed in AR 40-501 and there was no psychiatric disease or defect that warrants disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); (1) DD-214; (2) Memorandum, defense counsel (two pages); (3) Report of Driver License Suspension; (4) Military Police Report; (5) two sworn statements; (6) initiation of separation action memorandum (two pages); (7) acknowledgement of separation memorandum; (8) Armed Forces Traffic Ticket; and (9) Developmental Counseling Form. 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. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." "Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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 on Active Duty. The applicant seeks relief contending, he believes the record is in error and also unjust because there were legal flaws in the charges that were presented against him; and he was separated unfairly from the Army and the military police made several errors in processing him. There is 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that record is in error or that he was unjustly discharged. The applicant further contends, he was charged with DUl when actually there was no evidence of a DUI; because the military police never performed a proper BAC breathalyzer or a blood draw and there was a total lack of evidence in this case. The record of evidence (GOMOR), shows that a Military Police officer observed him operating a motor vehicle with a broken tail light. Upon contact, the officer detected a strong odor of an alcoholic beverage emitting from his person. He was administered a series of standardized field sobriety tests, which he failed. While conducting a search of his vehicle, the officer discovered an open container in the passenger area of the vehicle. After being read the Georgia Implied Consent Law, he refused to submit to a breathalyzer test. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts Martial. 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 23 August 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160006994 1