1. Applicant's Name: a. Application Date: 1 February 2016 b. Date Received: 26 February 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a narrative reason change, and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, the characterization of service does not apply to the applicant and is flawed due to procedural error. He also believes that the purpose for the discharge and the discharge narrative have been served and that it is now appropriate for the proper characterization of service to be applied. The applicant served honorably for four years and deployed to a combat zone during his tour. The reasons for separation are in error and the applicant was not guilty of the commission of a serious offense (Assault). The applicant received an Article 15 for "provoking gestures" under the UCMJ. This offense did not rise to the level of the commission of a serious offense. The level of disposition and the finding of guilt showed how the chain of command viewed the underlying offense in this case. The misconduct was charged as "provoking gestures," which is a relatively low-level offense. Although there were significant problems with the Article 15, the applicant did not complain and served his sentence in this case. At no point did he plead guilty to any higher level offense than "provoking gestures." At no point was he ever found guilty of committing an "Assault." By notifying the applicant of an offense greater than "provoking gestures," the command is manufacturing the commission of a serious offense for the purpose of the administrative separation. The higher level offense is not warranted nor founded by the evidence. The chain of command changed the level of offense for the purpose of "fixing" an administrative separation. If the applicant did not commit an assault, this cannot be the basis of separation. The applicant disputes the legality of the underlying Article 15 in this case. He believes that he was not properly afforded an opportunity to consult with Trial Defense Services prior to disposition of the Article 15. He did not fully understand his right to object to the Article 15 and to demand trial by court-martial at the time that he accepted the Article 15. At the time of the Article 15, he requested to have witnesses in both defense and in mitigation present at the Article 15. He was told that he would not be allowed to have those witnesses testify. The proceeding was not in accordance with AR 27-10 or AR 15-6. The legitimacy of the Article 15 is called into question due to these errors. The applicant has support from many of his peers and superiors in this case. He is an excellent Soldier and has demonstrated that during his time in the military. He also has family and community support in this case. The applicant provides letters of recommendation in support of his request. The other significant error in this case is that one of the findings of the commission of a serious offense under AR 635-200, is that the Soldier has committed a serious offense. This would be something that equaled separation under the UCMJ "Provoking Gestures" is not one of those offenses. The applicant wishes to continue to serve in the military. His personal statement shows that he has the willingness and desire to continue in his military service. AR 635-200 has a requirement that Soldiers be rehabilitated after an incident of misconduct. In this case, the applicant continued to Soldier onward, even after getting the Article 15. He demonstrated that he can overcome this incidence and has further value to the military. In a records review conducted at Arlington, VA on 31 May 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 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 2 February 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 October 2014 (2) Basis for Separation: The applicant committed assault with a dangerous weapon that was likely to produce death or grievous bodily harm on or about 23 June 2014, by picking up his M4, chambering a round, and placing the selector lever from "SAFE" to "SEMI." (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 November 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 January 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 August 2012 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13F10, Fire Support Specialist / 2 years, 4 months, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (2 February 2014 to 28 July 2014) f. Awards and Decorations: ACM-CS, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 13 July 2014, for wrongfully using provoking gestures, to wit: picking up his M4 rifle, chambering a round and placing the selector switch from "SAFE" to "SEMI" towards SPC S. (23 June 2014). The punishment consisted of a reduction to E-1, forfeiture of $765 pay per month for two months, and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 1 October 2014, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with (Axis I) Occupation Problems. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant completed the Emergency Medical Technician Program and the CPR for Life course. 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, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a narrative reason change, and a reentry eligibility (RE) code change. The applicant's 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. 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 be retained on active duty. The applicant contends the purpose for the discharge and the narrative reason for separation have been served and that it is now appropriate for the proper characterization of service to be applied. However, each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. Further, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. 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 contends he was not separated for commission of a serious offense, but instead was separated for committing a minor one as cited in his Article 15. However, charges cited on the Article 15 paper are not controlling with regard to whether applicant's misconduct was serious or minor. A command is authorized to separate a Soldier for serious misconduct irrespective of whether the command also chooses to discipline him under the UCMJ. Further, the actual misconduct, and not the UCMJ Article cited on his Article 15 paperwork, is the key and controlling issue in this case. The misconduct that provided the grounds for applicant's separation meets the elements of aggravated assault. The punishment for aggravated assault includes a punitive discharge. Therefore, the applicant's misconduct satisfies the "serious misconduct" criteria as defined by AR 635-200, Ch. 14-12(c). The applicant desires to rejoin the Military Service. 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 RE codes if appropriate. The applicant contends the Article 15 process was not proper. However, the applicant's issue does 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 contends that he had good service which included a combat tour. 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 accomplishments. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct while in the Army; however, the character reference statements were considered at the time of his separation proceedings. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The Army Discharge Review Board is authorized to consider post-service factors in the characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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 31 May 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 Authority to: No Change e. Change SPD / RE Code to: No Change f. 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 AR20160005178 5