1. Applicant's Name: a. Application Date: 15 December 2016 b. Date Received: 19 December 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his discharge was inequitable because his positive counseling records were missing, which lessened his ability to defend himself during his formal board proceedings, and an erroneous Article 15 action, harsh and unsubstantiated, imposed approximately one year prior to his Summary Court Martial was used to prove "pattern of misconduct." His discharge was improper and inequitable because his command failed to show that rehabilitation was impracticable and/or that he was not amendable to rehabilitation efforts; they failed to prove that waiving a rehabilitative requirement was proper and justified by neglecting reports of favorable duty performance; they made no attempts of rehabilitation; the command and senior NCOs had an equity issue towards him which was viewed by other NCOs and fellow Soldiers as a toxic leadership style within the unit; the commander and senior NCOs verbally assaulted, demeaned, and insulted him once UCMJ/separation actions were initiated; an MPI/CID statement in his adultery charge provided untrue and derogatory information showing bad light on his character and may have unfairly diminished his retention in the Army or a more favorable discharge; prior to his summary court- martial, he was not afforded the right to consult with counsel, nor advised of his right to object to trial by summary court-martial, presenting motions, or submitting written matters in extenuation and mitigation pursuant to RCM 1105; any matters presented would have shown that the offense(s) were not as serious as they appeared and were out of character for him as a Soldier; there were issues with fairness and impartiality because certain members of his separation board proceedings should not have been deemed to be fair and impartial; his counsel was inadequate as there were no objections to witnesses that made unproven or false allegations, or negative comments on the recommendation for his discharge and whom he has never met or spoken to; and comments made were based solely on word of mouth information or briefings from command staff regarding his situation, and some were allowed for "mere smear tactics to ensure his discharge." In a personal appearance hearing conducted at Arlington, VA on 16 October 2017, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, personal testimony, a Kosovo Operational Deployment, post-service accomplishments and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 22 December 2001 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 August 2001 (2) Basis for Separation: The applicant was informed of the following reasons: In an approximately one-year period, he disobeyed orders of his commissioned officer, disrespected an NCO, and committed adultery. The offenses have resulted in a conviction by a summary court-martial and receiving a company grade Article 15. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 August 2001 (with Conditional Waiver) (5) Administrative Separation Board: 8 November 2001, recommended Under Other Than Honorable Conditions discharge (6) Separation Decision Date / Characterization: 18 December 2001 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 August 1999 / 5 years b. Age at Enlistment / Education / GT Score: 28 / 14 years / 115 c. Highest Grade Achieved / MOS / Total Service: E-3 / 95B10, Military Police / 2 years, 4 months, 11 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Germany, Kosovo / Kosovo (3 June 2000 to 16 December 2000) f. Awards and Decorations: KCM; ASR; OSR; NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for being recommended for an under other than honorable conditions discharge by an administrative separation board that convened on 8 November 2001; reemphasizing the no-contact order remaining in effect; disobeying a commissioned officer; continuing to lie to his chain of command; being attached to another unit; breaking a no-contact order; performance in month of May 2001, being unsatisfactory; not progressing on meeting body fat standard; remaining in special PT program; court-martial charges being preferred; and suspension of civilian clothes, leave, and pass privileges;. Monthly counseling statements for April, August, September, October, and December 2000, January, February, March, April, May, July 2001, reflecting the applicant's performance as being a valuable asset by communicating with TAC operations on pertinent information; keeping up the good work; doing PT on his own; watching his weight; passing his record APFT; successfully completing military education; performance being satisfactory; completing deployment; preparing for and overcoming a summary court-martial; the importance of obeying all lawful orders; since being assigned to Stuttgart, receiving positive on performance as being satisfactory; completing mission; being eager to learn more; and qualifying as expert with weapons marksmanship. Report of Proceedings of Board of Officers reports that an administrative separation board that convened on 8 November 2001, unanimously found that the applicant displayed a pattern of misconduct by disobeying a lawful order on numerous occasions, and by unanimous vote, recommended to discharge the applicant from the service for pattern of misconduct and issuance of an under other than honorable conditions discharge certificate. 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 15 December 2016, with self-authored statement; DD Form 214; memorandum for record, dated 15 February 2001; approximately 16 counseling statements, dated 28 February 2000, 31 March 2000, 22 April 2000, 1 May 2000, 27 June 2000, 1 June 2001 x 2, 5 June 2001, and monthly counseling for August 2000, September 2000, 18 October 2000, 16 February 2001, 28 February 2001, 30 March 2001, 12 July 2001 with positive counseling list, and 1 November 2001; CG Article 15, dated 19 July 2000; sworn statement, dated 26 February 2001; handwritten statement of Ms. A, dated 18 July 2001; sworn statement, dated 7 February 2002; two commander's requests for mental health evaluation, 6 March 2001 and 2 July 2001; Charge Sheet; Summary of Proceedings (administrative separation board) with the findings and recommendations of the board; Standing Board for Administrative Separations Appointment memorandum, dated 16 November 2001; five character reference statements, dated 12 June 2001, 22 July 2001, 7 November 2001, 7 December 2016, and 14 December 2016; trial defense counsel memorandum, dated 18 July 2001; and three supporting statements rendered by SGT L, SSG (Retired) C, and CSM M. 6. POST SERVICE ACCOMPLISHMENTS: According to the applicant's documentary evidence, a memorandum for record rendered by CSM M, since the applicant's discharge, he has served over 12 years as a deputy sheriff, assisting communities, and making a difference in the lives of others. 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 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. 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 misconduct, the applicant knowingly risked a military career and diminished 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 contends the discharge was inequitable and improper due to the numerous issues he cited, which included being denied the opportunity to exercise several rights, a statement used provided untrue and derogatory information, there were issues with fairness and impartiality of certain members of the separation board proceedings, and his counsel was inadequate. 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. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The third party statements provided with the application speak highly of the applicant's character and performance. Some recognized 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. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant contends his command failed to show that rehabilitation was impracticable and/or that he was not amenable to rehabilitation efforts or that waiving a rehabilitative requirement was proper and justified by neglecting reports of favorable duty performance, and they made no attempts of rehabilitation. However, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling. Further, before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation. The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. The evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies. The applicant failed to respond appropriately to these efforts. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such rehabilitative transfer will serve no useful purpose or produce a quality Soldier. The applicant contends the command and senior NCOs had an equity issue towards him that were viewed by others as a toxic leadership style within the unit, and he was verbally assaulted, demeaned, and insulted. However, the record of evidence does not demonstrate that he sought relief through the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of 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. 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 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 14-12b is "Pattern of Misconduct," and the separation code is JKA. 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. The character of the applicant's discharge is commensurate with his overall service 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Typewritten Personal Statement (received one day after the personal appearance hearing was convened) - 22 pages b. The applicant presented no additional contentions. c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 16 October 2017, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, personal testimony, a Kosovo Operational Deployment, post-service accomplishments and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions 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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20170002688 7