1. Applicant's Name: a. Application Date: 11 April 2016 b. Date Received: 28 April 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, to change the narrative for his discharge, and to restore his grade of E-4/SPC. The applicant seeks relief contending, in pertinent part and in effect, his discharge was based on an isolated unsubstantiated incident. He claimed his innocence at the onset of the charges, and he was subsequently acquitted of all charges. His discharge was improper because the military did not follow proper protocol. An administrative separation board was not necessary for the unproven allegations. He also satisfied his service contract and his discharge was not completed prior to his ETS date of 12 December 2014. An upgrade would reflect the actual level of commitment and dedication he rendered the US Army during his 40 months of service. He was awarded an ACM, ARCOM, and a CIB for his service in a hostile combat zone. In a records review conducted at Arlington, VA on 12 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 May 2014 (2) Basis for Separation: The applicant participated in a drive-by shooting at Champion's Sports Bar on 13 October 2013. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 26 June 2014 (5) Administrative Separation Board: 28 October 2014, the board recommended an Under Other Than Honorable Conditions discharge (6) Separation Decision Date / Characterization: 12 December 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 August 2011 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 months, 20 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (2 November 2012 to 28 July 2013) f. Awards and Decorations: ARCOM; ACM; GWOTSM; ASR; OSR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Civilian Police Department Report and its associated documents, dated 14 October 2013, show that the applicant was the subject of an investigation for a drive-by shooting. MP and MPI Reports, dated 10, 16, and 21 January 2014, documents same investigation, with an added offense of civil charge: conspiracy to commit drive-by shooting, respectively. Report of Proceedings by Board of Officers and its summarized proceedings indicate the administrative separation board, which convened on 28 October 2014, reported their findings that preponderance of the evidence supported the applicant had participated in a drive-by shooting at or near Champion's Sports Bar on 13 October 2013. The board recommended to separate the applicant with an Under Other Than Honorable Conditions characterization of service. Report of Mental Status Evaluation, dated 8 April 2014, cleared the applicant from a behavioral health perspective for administrative separation according to AR 635-200. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 April 2016, with self-authored statement, background information of his administrative separation, and chronological listing of events and documents attached (note that attachment No. 22, "Acquitted of all charges" is not attached. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable, to change the narrative for his discharge, and to restore his grade of E-4/SPC. The applicant's record of service, and 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. By the incidents of serious misconduct, the applicant knowingly risked a military career and marred the quality of his service. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant's contentions about the military not following the proper protocol of his discharge and that he was acquitted of all the charges that led to his separation were carefully considered. However, 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 sufficient evidence, to support a change to the characterization of service granted or the narrative reason for his discharge. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge or to change the reason for his discharge. The applicant contends the incident that caused his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service. The third party statements provided with the application speak highly of the applicant's character and performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct Serious Offense," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant requests that his rank be restored. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record, including the incidents of serious misconduct. 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 12 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 AR20160009365 4