1. Applicant's Name: a. Application Date: 8 January 2016 b. Date Received: 12 January 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable, a change to the narrative reason for his separation, and its corresponding codes. The applicant seeks relief contending, in effect, his request for relief is based on the propriety and equity of his discharge, in that the command made numerous constitutional and regulatory violations during his discharge process, and due to extenuating and mitigating circumstances. The command committed clear legal errors when it referred the allegation of provoking language to the board, when it discharged the applicant for allegedly committing the offense, and when it referred the allegations of being late to his appointed place of duty to the board. The board committed a clear legal error when it found sufficient evidence to substantiate that he choked his wife. The board president committed a clear legal error when he granted the applicant's military defense counsel only a two-day delay to prepare for the board hearing. The command violated the applicant's due process rights to a fair and impartial hearing by appointing officers to the board who were clearly biased against the applicant, and when the board recorder provided the applicant's defense counsel with names of nine witnesses the government intended to call to the hearing, less than four days before the hearing, and without any contact information. A UOTH discharge was not authorized by Army Regulation for the alleged serious offense. Because of substantial defects in the board hearing, the convening authority erred in approving his discharge with a UOTH characterization because Army policy required him to either direct retention or refer his case to a new board. In a records review conducted at Arlington, VA on 29 March 2017, 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 / Under Other Than Honorable Conditions b. Date of Discharge: 24 June 2014 c. Separation Facts: (Note that the complete separation file is NIF) (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: 2 May 2014, and according to the applicant's documentary evidence, the board made the following findings, and recommended the applicant's discharge with an under other than honorable conditions discharge: The allegation that the applicant choked his spouse, by grabbing her by her throat and pushing her while she was holding a baby was supported by a preponderance of evidence, and the allegation warranted separation. The allegation that he used provoking words towards SPC P, when he said to him, "What did you just say to me, you mother fucker, fuck you, fucken bless you" and "I wanted to fight you," or words to effect supported by a preponderance of the evidence, and this allegation does warrant separation. The allegation that on divers occasions (between 25 August 2013 and 25 September 2013), the applicant was late to his appointed place of duty was supported by a preponderance of evidence, and the allegation does not warrant separation. The allegation that on 19 June 2013, the applicant was disrespectful in language and deportment to SSG H was supported by a preponderance of the evidence, and the allegation does not warrant separation. (6) Separation Decision Date / Characterization: 4 June 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 June 2013 / 3 years (NIF, based on DD Form 214 and ERB) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14G10, Air Defense Battle Management System Operator / 9 years, 7 months, 28 days d. Prior Service / Characterizations: RA, 27 October 2004 to 27 August 2007 / HD RA, 28 August 2007 to 13 June 2010 / HD RA, 14 June 2010 to 16 June 2013 / HD e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: ARCOM, AAM, AGCM-2, NDSM, GWOTSM, NCOPDR, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders with its amendment, dated 10 and 24 June 2014, respectively i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The administrative board proceedings, pages 9 and 14, indicate the applicant attempted suicide. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney-authored case summary; request for review of discharge; attorney-authored statement, entitled, "Part III: Propriety and Equity Supports the Requested Relief; counseling statements; Summary of Proceedings with findings and recommendations of the administrative separation board; Temporary Restraining Order, with Notice of Hearing and Petition for an Order for Protection; Request for Mental Health Consultation; three counseling statements; MEB Proceedings; chain of command's recommendations; and e-mail correspondence. 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, paragraph 14-12c, 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. 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, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." "Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service 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 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. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. Although the applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army, the applicant's documentary evidence confirms that his 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, such that he should have been retained on Active Duty. The applicant contends that his discharge was unjust because of impropriety and inequitable issues, in that the command made numerous constitutional and regulatory violations during his discharge process, and due to substantial defects in the administrative separation board hearing. His contentions 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. The applicant requests to change the narrative reason for his separation; however, this is governed by specific directives. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant also requested a change to the reentry eligibility code. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service or to change the narrative reason for his discharge. Regarding the applicant's documentary evidence, a medical evaluation board proceedings, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Based on the available 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 29 March 2017, 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 SPD / RE Code to: No Change e. Restore (Restoration of) 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 AR20160001464 1