1. Applicant's Name: a. Application Date: 17 January 2017 b. Date Received: 27 January 2017 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 seeks relief contending, in pertinent part and in effect, his discharge was improper because it was initiated by an individual without the requisite authority under AR 600-8-24; it was considered a resignation in lieu of elimination proceedings even though no resignation was submitted (because he did not submit a request for resignation, his discharge should be upgraded and the separation authority cite on his DD Form 214 should be corrected); his total period of active duty was incorrect, as he was likely a non-probationary officer (he had "fewer than" five years of ACS); and his discharge resulted in an inability to address loan repayment entitlement based on his contract with the Army (because he served three years of active duty, he should have received re-payment for his loans, instead he was forced to consolidate and repay his loans on his own). His current discharge has more than served its intended purpose. The applicant also requests to amend the separation authority to correspond with the Board's action, and to recommend an entity that would determine whether he qualifies for the loan repayment due to the improper separation action. In a records review conducted at Arlington, VA on 2 May 2018, 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: Unacceptable Conduct / AR 600-8-24, Paragraphs 4-2b and 4-24a(1) / BNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 16 April 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 October 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On 2 June 2012, he drove under the influence and was arrested because he was observed weaving into another lane while operating a vehicle. When stopped by a civilian police, he was unable to complete the field sobriety test and then refused to participate in the state administered breath test. While being processed at the police station, he offered the booking officer money and a vacation. His conduct was unbecoming of an officer. After he was arrested and transported to the police station, he offered the booking officer $5,000, a trip to Cancun, Mexico for the officer and his family, as well as the other officers involved in the traffic stop. He threatened the officer by saying to him, "'If I ever see you at the end of the road, and you are hurting, I'll make you pay for it.'" (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 January 2013 and 6 March 2013 (5) DA Ad Hoc Review Board Recommendation: General (Under Honorable Conditions) (6) Separation Decision Date / Characterization: 27 March 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period/Type of Service: 17 August 2009 / OBV / Ordered to Active Duty pursuant to Orders to Extended Active Duty b. Age at Current Service / Education / GT Score: 36 / Masters, Medical Science / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 65D, Physician Assistant / 10 years, 7 months, 18 days d. Prior Service / Characterizations: USAR (29 August 2002 to 9 September 2002) / NA IADT (10 September 2002 to 13 May 2003) / HD USAR (14 May 2003 to 18 September 2003) / NA ARNG (19 September 2003 to 24 September 2004) / HD ARNG (25 September 2004 to 28 April 2005) / HD USAR (29 April 2005 to 16 August 2009) / NA e. Overseas Service / Combat Service: SWA / Iraq (15 December 2010 to 17 December 2011) f. Awards and Decorations: MSM; NDSM; ICM-CS; ASR; OSR g. Performance Ratings: Four OERs, as follows: 17 August 2009 thru 13 May 2011, Outstanding Performance, Must Promote 7 March 2012 thru 24 July 2012, Satisfactory Performance, Promote 25 July 2012 thru 8 August 2012, RFC, Unsatisfactory Performance, Do Not Promote 12 September 2012 thru 15 April 2013, Outstanding Performance, Must Promote h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statement for being arrested for failing to maintain his lane; refusing a breathalyzer; and conduct being reprehensible. Civilian police report with its associated documents, dated 2 June 2012, indicates the applicant was the subject of an investigation for improper lane usage and driving under the influence (refusal). General Officer Memorandum of Reprimand, dated 12 June 2012, indicates the applicant was reprimanded for driving while under the influence of alcohol. 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 17 January 2017, with attorney-authored brief; DA Service Agreement (AFHPSP); ORB; GOMOR; Initiation of Elimination memorandum, dated 25 October 2012; Applicant's response and TDS counsel memorandum, dated 10 January 2013; DASA decision memorandum, dated 27 March 2013, with ALARACT message; applicant's response to the asserted "resignation in lieu of elimination," dated 15 April 2013; DD Form 214; and email correspondence, dated 8 and 10 November 2007, 19 and 23 January 2008, 19 and 23 June 2008, 19 November 2008, 19 November 2014, 22, 23, and 30 March 2009, 8-9 April 2009, 1 November 2011, 18- 19 November 2014, and 11 April 2013. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. 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 "BNC" as the appropriate code to assign Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, paragraphs 4-2b and 4-24a(1), unacceptable conduct, pursuant to resignation or voluntary discharge in lieu of elimination proceedings. 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 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 his discharge based on unacceptable conduct 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant provided no corroborating evidence demonstrating that the command's action was erroneous or sufficient evidence showing his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained on Active Duty. The applicant's contentions that his discharge was improper because his discharge was initiated by an individual without proper authority, that he never submitted a resignation in lieu of elimination as cited in the decision memoranda, and that he was likely a non-probationary officer with less than five year of active service, 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. 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. Further, regarding the applicant's contentions that the improper process of his discharge caused him to consolidate and repay his educational loans on his own, and his request to recommend an appropriate entity to assist with these issues, and because they do not fall within the purview of this Board, the applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 AR 600-8-24, Chapter 4, paragraphs 4-2b and 4-24a(1) is "Unacceptable Conduct," and the separation code is BNC. 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 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 2 May 2018, 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 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 AR20170006276 1