1. APPLICANT’S NAME: a. Application Date: 6 April 2015 b. Date Received: 16 April 2015 c. Counsel: Yes 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant requests through legal counsel an upgrade of his discharge from general, under honorable conditions to honorable, an change to his narrative reason for discharge and to his reentry eligibility (RE) code. He also requests full reinstatement into the Army at the pay grade of E-5 with immediate promotion eligibility to E-6, effective the date of his separation, and full back pay from the date of separation to present. The applicant states, in effect, he was wrongfully and erroneously discharge from the Army and he was unjustly discharged with a characterization of service of general, under honorable conditions. His discharge was based on an isolated incident. The applicant believes his discharge should be upgraded base on having served honorably, with distinction, while receiving several awards and honors. In a personal appearance review conducted at Arlington, Virginia, on 16 November 2015, and by a 5-0 vote, the Board after carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony, determined the characterization of service was too harsh based on the applicant’s overall length and quality of service to include his combat service, and the circumstances surrounding the discharge (i.e., PTSD like symptoms and other incurring mental health conditions) 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 honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. (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: 11 December 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 October 2011 (2) Basis for Separation: The applicant was informed of the following reasons: for being apprehended for driving under the influence of alcohol (3) Recommended Characterization: General, Under Honorable Conditions (4) Legal Consultation Date: 12 October 2011 (5) Administrative Separation Board: None (6) Separation Decision Date/Characterization: 27 October 2011 4. SERVICE DETAILS: a. Date/Period of Enlistment: 5 February 2008/4 years and 8 weeks b. Age at Enlistment/Education/GT Score: 19 years/HS Graduate/125 c. Highest Grade Achieved/MOS/Total Service: E-5/13F2P, Fire Support Specialist/ 6 years and 19 days (The DD Form 214 under review does not account for a total of 2 year, 2 months and 12 days the applicant served in the ARNG) d. Prior Service/Characterizations: ARNG-23 November 2005-12 June 2006/NA ADT-13 June 2006-11 August 2006/NIF ARNG-12 August 2006-3 June 2007/NA ADT-4 June 2007-28 July 2007/HD ARNG-29 July 2007-4 February 2008/HD (Concurrent Service) e. Overseas Service/Combat Service: Alaska, Southwest Asia/Afghanistan (12 February 2009-12 February 2010) f. Awards and Decorations: ARCOM, AAM-2, VUA-2, AGCM, NDSM, ACM-w/2CS, GWOTSM, ASR, OSR-2, NATO MDL, CAB g. Performance Ratings: A NCO Evaluation Report covering the period 1 November 2010 through 31 May 2011, showing the applicant was rated overall as “Among the Best,” by his senior rater. h. Disciplinary Action(s)/Evidentiary Record: A Military Police Report, dated 15 August 2011, which indicates the applicant was the subject of investigation for driving under the influence of alcohol. A General Officer Memorandum of Reprimand (GOMOR), dated 3 November 2011, indicates the applicant was reprimanded for driving under the influence of alcohol with a Breath Alcohol Content (BAC) of .146 percent on 23 July 2011. The GOMOR-Staff Action Coversheet, attached to the GOMOR packet makes reference to the applicant having had multiple DUI charges/convictions or two DUIs. Additional documents showing the applicant received more than one DUI were not found in the available record. i. Lost Time: None. j. Diagnosed PTSD/TBI/Behavioral Health: The Report of Behavioral Health Evaluation, dated 24 August 2011, shows the applicant was diagnosed with anxiety disorder NOS. However, it was determined the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 149 in lieu of a DD Form 293, and a legal brief which included 23 attachments. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, since his discharge he has been employed full-time with a mining company and is enrolled in college to pursue a degree in liberal arts. 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, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKQ" will be assigned a RE Code of 3. 8. DISCUSSION OF ISSUE(S): The applicant through legal counsel requests an upgrade of his discharge from general, under honorable conditions to honorable, a change to his narrative reason for discharge and to his reentry eligibility (RE) code. The applicant’s record of service, the issues and the documents submitted with the application were carefully considered. 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. 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. The appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for misconduct (serious offense) is “JKQ” and the RE code is 3. The regulation further stipulates no deviation is authorized. The applicant seeks relief contending he was wrongfully and erroneously discharge from the Army, and he was unjustly discharged with a characterization of service of general, under honorable conditions. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was wrongfully or unjustly discharged from the Army. In fact, the applicant, as an NCO, had the duty to support and abide by the Army's alcohol policies. By drinking and driving the applicant knowingly risked a military career and marred the quality of his service. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. AR 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 transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. There is no evidence in record and the applicant provided no evidence showing he requested or was seeking medical assistance prior to the incident of misconduct. The applicant contends the incident that caused his discharge was based on an isolated incident 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. Also, documents in the record indicate the applicant may have committed another DUI offense earlier during this period of service. The applicant contends that he had honorable and distinction service which included service in Afghanistan, receiving of several awards which included the ARCOM, AAM-2, VUA-2, AGCM, NDSM, ACM-w/2CS, GWOTSM, ASR, OSR-2, NATO MDL, CAB and several certificates of achievements. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his achievements. Furthermore, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents submitted with the application. The applicant is to be commended for his accomplishments. 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 applicant also requested through legal counsel full reinstatement into the Army at the pay grade of E-5 with immediate promotion eligibility to E-6 effective the date of his separation and full back pay from the date of separation to present. However, the applicant’s requested changes 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 these issues. A DD Form 149 may also be obtained from a Veterans' Service Organization. In view of the foregoing, the Board determined the characterization of service was too harsh and as a result it is inequitable. 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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. DD Form 214, dated 23 November 2011 - (1 page) b. Diploma: Completion of Medical - (1 page) c. Certificate of Achievement: Honor Graduate - (1 page) d. Diploma: Advanced Individual Training - (1 page) e. DD Form 214, dated 28 July 2007 - (1 page) f. Diploma: Completion of Fire Support Specialist Course - (1 page) g. Diploma: Completion of Airborne Course - (1 page) h. FBCB2-BFT Leader Operator Training Certificate - (1 page) i. Diploma: Joint Fires Observer Training Certificate - (1 page) j. Army Commendation Medal Award - (1 page) k. Army Achievement Medal Award - (1 page) l. NATO Medal Award - (1 page) m. Certificate of Training: Small Arms Weapons Optics Course - (1 page) n. Certificate of Training: PM Battle Command New Equipment Operator Training Course - (1 page) o. Army Achievement Medal Award (Second) - (1 page) p. Certificate of Training: Armored Knight Operator New Equipment Training Course (1 page) q. Warfare Leader Course - (1 page) r. Non-Commissioned Officer Evaluation Report - (2 pages) s. Statement of Progress, dated 14 October 2011 - (1 page) t. Certificate of Completion: Risk Reduction Program - (1 page) u. Memorandum from LTC S.D., dated October 2011) - (3 pages) v. Affidavit from N.E. - (2 pages) w. Affidavit from D.D. - (1 page) x. Affidavit from L.H. - (1 page) y. Affidavit from J.M. - (2 pages) z. National Institutes of Health: Alcohol Research: Current Reviews, Volume 34, Issue Number 4 - (5 pages) 2. The applicant presented no additional contentions. 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. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150006858 1