1. Applicant’s Name: a. Application Date: 22 April 2015 b. Date Received: 8 May 2015 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The counsellor on behalf of the applicant requests that his general, under honorable conditions discharge be upgraded to honorable, the narrative reason for separation changed and the reentry eligibility (RE) code amended. The counsellor on behalf of the applicant seeks relief contending, in effect, as stated in the supporting separation memorandum, the alleged basis of his separation action was that the applicant was arrested for public intoxication on 13 September 2014. In this case, the separation of the applicant was improper because the applicant was separated for being “arrested.” Being arrested is not an offense under the Manual Courts-Martial, nor is there any offense under the MCM that would closely align with the basis for separation. In a records review conducted at Arlington, VA on 3 August 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: Misconduct (Serious Offense), AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 3 March 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 February 2015 (2) Basis for Separation: The applicant was arrested for public intoxication on 13 September 2014. (3) Recommended Characterization: General, Under Honorable Conditions (4) Legal Consultation Date: 9 February 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date/Characterization: NIF 4. SERVICE DETAILS: a. Date/Period of Enlistment: 8 March 2013 / 4 years and 25 weeks b. Age at Enlistment/Education/GT Score: 22 years / HS Grad / 87 c. Highest Grade Achieved/MOS/Total Service: E-4 / 91B10 Wheeled Vehicle Mechanic / 5 years, 5 months, and 26 days d. Prior Service/Characterizations: USAR, 7 August 2009 - 7 September 2009 / NA RA, 8 September 2009 - 7 March 2012 / HD e. Overseas Service/Combat Service: SWA / Afghanistan (17 June 2010 - 17 June 2011 and 13 February 2013 – 15 March 2013) f. Awards and Decorations: AAM-2, NDSM, GWTSM, ACM-CS, NATO MDL-2, ASR g. Performance Ratings: N/A h. Disciplinary Action(s)/Evidentiary Record: DA Form 4856 (Developmental Counseling Form) dated 15 September 2014, for getting arrested outside the Gatsby nightclub in downtown El Paso. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 22 April 2015; counsellor letter, dated 5 May 2015; and copies (partial) of the applicant’s separation packet, dated 9 February 2015. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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 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 be upgraded to honorable, the narrative reason for separation changed and the reentry eligibility (RE) code amended. The applicant’s available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant’s record is void of the complete facts and circumstances concerning the events which led to the former Soldier’s discharge from the Army. Barring evidence to the contrary, the presumption of government regularity shall prevail, as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant’s counsel seeks relief contending, in effect, as stated in the supporting separation memorandum, the alleged basis of his separation action was that the applicant was arrested for public intoxication on 13 September 2014. In this case, the separation of the applicant was improper because the applicant was separated for being “arrested.” Being arrested is not an offense under the MCM, nor is there any offense under the MCM that would closely align with the basis for separation. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 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. Additionally, the complete facts and circumstances leading to the discharge are not contained in the service record, only the partial documents submitted by the applicant. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof which remains with the former Soldier to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. The applicant’s counsel also request a change to the narrative reason for the discharge and the reentry eligibility (RE) code. However, the SPD code of "JKQ" is the appropriate code to assign enlisted Soldiers who are discharged for misconduct-serious offense. The regulation further stipulates that no deviation is authorized. Further, a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 3 August 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 Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable 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 OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training 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 MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150008070 4