1. Applicant's Name: a. Application Date: 2 June 2016 b. Date Received: 8 June 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant seeking relief contends, in pertinent part and in effect, his current characterization of service is inequitable because it does not accurately reflect the nature of his service of over three years, including a warzone deployment, and the singular isolated incident should not form the basis of the characterization of service. His military record shows he received numerous citations and awards, the JSCOM, AGCM, ICM-CS, KDSM, NDSM-2, OSR, ASR, GWOTSM, and JMUA. He was requested for to provide support during OND in Iraq because of his impressive resume and stellar reputation. He was recommended for an honorable discharge because he performed with distinction executing numerous training events, even after being charged. His enlistment was otherwise commendable as he had no prior disciplinary actions. The counsel on behalf of the applicant contends the misapplication of the military installation's Master Policy No. 111 led to the denial of the applicant's due process rights under AR 600-85, because of failing to appreciate the fundamental difference between a mandatory initiation of separation proceedings and a mandatory separation. It was also virtually impossible for the applicant to consult with an attorney on a walk-in status, because the applicant relied on the separation authority to trust the recommendations of his immediate commanders for an honorable discharge, and he did not want to worsen his situation by being perceived as uncooperative. Despite the charges, he continued to demonstrate honest and faithful service. Since his discharge, he successfully completed all requirements of the judgment rendered due to his civilian charges for the DUI that led to his discharge. The public defender documented the applicant's excellent behavior throughout the process, and urged for an upgrade of his discharge. The applicant was also certified as an EMT and successfully completed the civil service examination toward becoming a firefighter. However, while trying to help a former Soldier with PTSD who attempted suicide, the applicant was injured by a rifle and became disabled and ineligible for employment as a firefighter. An upgrade would provide the applicant an access to VA benefits, such as educational benefits. In a records review conducted at Arlington, VA on 09 August 2017, and by a 4-1 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include combat service, and the post service accomplishments (i.e. completing school for EMT certification and saving a suicidal person's life) mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions) and the separation code to JKN. (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: 12 June 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 May 2013 (2) Basis for Separation: On 18 March 2013, the applicant stopped at the All American ACP for suspicion of driving under the influence and escorted to the Provost Marshal's Office where he was given a breathalyzer, which resulted in a BAC of 0.19. (3) Recommended Characterization: An initial General (Under Honorable Conditions) recommendation was changed by the unit commander to an honorable characterization, and the battalion commander recommended an honorable characterization (4) Legal Consultation Date: Waived, 9 May 2013 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 May 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 March 2010 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 121 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 3 years, 3 months, 10 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (6 January 2011 to 18 December 2011) f. Awards and Decorations: JSCOM; AGCM; NDSM; ICM-CS; GWOTSM; KDSM; ASR; OSR; JMUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders There is no record of any negative counseling statement or action under the UCMJ. The applicant was discharged at the grade of E-4/SPC. 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 2 June 2016, with an attorney-authored petition and list of attachments (attachments 1 through 66), dated 24 May 2016. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence (attachment 54) states that while the applicant worked two jobs, he attended school and earned an EMT certification. 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 general (under honorable conditions) discharge to honorable and to change the narrative reason and its corresponding codes for his discharge. The applicant's available 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 misconduct, the applicant knowingly risked a military career and marred the quality of his service. The applicant's contentions about the misapplication of a military installation's documented policy, Policy No. 111, and the denial of the applicant's due process rights under AR 600-85, were carefully considered. However, 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. In consideration of the applicant's service accomplishments, the quality of his service prior to and subsequent to the misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. Furthermore, the Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application were carefully considered. They speak highly of the applicant's performance and character, and recognize his good conduct after leaving the Army; 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. The applicant contends that an upgrade of his discharge would allow VA benefits, such as educational benefits through the use of the GI Bill. However, eligibility for veterans' 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 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 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. 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 the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 09 August 2017, and by a 4-1 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include combat service, and the post service accomplishments (i.e. completing school for EMT certification and saving a suicidal person's life) mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions) and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / No change to RE code f. Restore 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 AR20160010843 3