1. Applicant’s Name: a. Application Date: 14 April 2015 b. Date Received: 20 April 2015 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a change to his narrative reason for discharge. The applicant states, in effect, he was improperly discharged by his command. The applicant seeks relief contending, in effect, he was not afforded legal counsel; he was never granted a separation hearing, thought he had completed more than six years of service; and he contends his separation packet contains documents he never saw or signed. He believes his commander and other members of his unit backed dated documents and used them to separate him improperly. In a personnel appearance review conducted at Arlington, VA on 25 April 2016, 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 18 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 October 2013 (2) Basis for Separation: The applicant was informed of the following reason: a pattern of misconduct (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 7 October 2013, the applicant refused to signed his election of rights documents. (5) Administrative Separation Board: None (6) Separation Decision Date/Characterization: 31 March 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 24 November 2008 (AGR Status) / NIF b. Age at Enlistment/Education/GT Score: 24 years / NIF / 91 c. Highest Grade Achieved/MOS/Total Service: E-5 / 91B10, Wheeled Vehicle Mechanic / 10 years, 11 months, and 22 days d. Prior Service/Characterizations: USAR-22 July 2003-16 April 2006 / NA OAD-17 April 2006-27 July 2007 / HD USAR-28 July 2007-22 May 2008 / NA ADT-23 May 2008-22 August 2008 / HD USAR-23 August 2008-23 November 2008 / NA (Concurrent Service) e. Overseas Service/Combat Service: Southwest Asia / Kuwait/Iraq (7 July 2006- 25 June 2007) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM-w/CS, ASR, OSR, AFRM-w/M Device g. Performance Ratings: 24 November 2008-23 November 2009, “Fully Capable” 24 November 2009-23 November 2010, “Fully Capable” 24 November 2010-23 November 2011, “Fully Capable” 3 April 2012-3 February 2013, “Marginal” 4 February 2013-3 February 2014, Marginal” h. Disciplinary Action(s)/Evidentiary Record: Article 15, imposed on 8 April 2013, for failure to go at the time prescribed to his appointed place of duty on 14 October 2012 and 23 February 2013. The punishment consisted of reduction to E4, forfeiture of $1,201.00 pay per month for two months (suspended), extra duty for 30 days, and a written reprimand (FG). Several negative counseling statements dated between 13 June 2012 and 27 February 2013 for his day to day responsibilities, his tardiness, total disregard and disrespect of following orders, lack of responsibilities and attitude, lack or no concern for the unit mission, conduct unbecoming of an NCO, being recommended for an Article 15 for violation of UCMJ Articles 92, 91, 90, and 89 i. Lost Time: The applicant’s record of service indicates five days of time lost from 2 October 2013 until 6 October 2013. The reason for the time lost was unclear. j. Diagnosed PTSD/TBI/Behavioral Health: Report of Mental Status Evaluation, dated 6 May 2014, shows the applicant was diagnosed with Axis I for an adjustment disorder. It was also noted the applicant was screened for PTSD and TBI; he screened positive for PTSD with a score of 61 and negative for TBI. The remarks section of the Report of Mental Status Evaluation noted the applicant meet the retention requirements of AR 40-501, Chapter 3-31-3-33 and did not require a medical evaluation board. He did not meet diagnostic criteria for PTSD or any other medically disqualifying psychiatric condition. Additionally, he did not exhibit or endorse symptoms of traumatic brain injury. The applicant was psychologically cleared for any administrative action deemed appropriated by command to include administrative separation IAW AR 635-200, Chapter 14-12. 5. APPLICANT-PROVIDED EVIDENCE: An online application and a statement of events leading to his discharge. 6. POST SERVICE ACCOMPLISHMENTS: None 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, 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. Secretary of Defense Memorandum for Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (PTSD), dated 3 September 2014, by implication provided the same guidance to the Service Discharge Review Boards whose decisions are reviewable by the Service Correction Boards. That memorandum provided PTSD or PTSD-related conditions "will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service." However, the memorandum also states, "Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in the discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a change to his narrative reason for discharge. The applicant’s available/record of service, 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. Furthermore, the appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for a pattern of misconduct is “JKA” and the RE code is 3. It should be noted the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of pattern of misconduct. Soldiers processed for a pattern of misconduct will be assigned an SPD Code of JKA and an RE Code of 3. 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 applicant seeks relief contending he was improperly discharged by his command; he was not afforded legal counsel; was never granted a separation hearing, thought he had completed more than six years of service; and he contends his separation packet contains documents he never saw or signed. He believes his commander and other members of his unit backed dated documents and used them to separate him improperly. The applicant’s contentions were noted; however, evidence in the record shows the applicant was notified of the pending charges against him on 7 October 2013, he refused to sign the documents. The notification document further shows the applicant was made aware that he had the right to consult with legal counsel or civilian counsel at no expense to the government within reasonable time (not less than 3 duty days). It was also noted the applicant was made aware that he had 7 days to submit statements in his own behalf and he failed to do so which constituted a waiver of his rights. The applicant contends his discharge was improper. 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 his discharge was improper. In fact, the applicant’s Articles 15 and numerous negative counseling statements justify a pattern of misconduct. 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. 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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Narrative Summary b. Memo c. July 2013 separation packet d. Email e. Court documents 2. The applicant presented the following additional contentions: Upgrade based on propriety and equity and change RE-Code 3. Witness(es)/Observer(s): Yes In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. 9. BOARD DETERMINATION: In a personnel appearance review conducted at Arlington, VA on 25 April 2016, 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: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) 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 AR20150006879 6