1. Applicant's Name: a. Application Date: 4 April 2016 b. Date Received: 11 April 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) and to change the narrative reason for his discharge. The applicant states, in pertinent part and in effect, his current discharge with no factual evidence is invalid as his legal proceedings were not handled correctly. He was never offered or permitted legal counsel in his defense during his UCMJ hearing, nor given the opportunity or offered the option to hire legal counsel prior to the court proceedings. His discharge was decided by his first sergeant and company commander before the hearing. He was not allowed to make any statement in his defense for the accused actions under Article 138, UCMJ, and the right to counsel detailed under Article 27, UCMJ-he was not given proper legal defense counsel. An upgrade would be a fair compromise to an unfair UCMJ hearing. He has been successful over the years with both his family and professional life. However, his discharge is restricting his ability to hold and maintain a high position of responsibility and career choice, such as law enforcement agency and serving his community as a police officer. At the time of his discharge, he was young and made poor decisions. Thus at a more mature adult state, an under other than honorable discharge should not restrict his decisions of furthering his education, pursuing a strong career, and serving both his country and community, or limiting his family's future. Other than the infractions, his strong performance and solid work ethics have greatly improved over the years based on improving his skills-thus creating a strong resume. Reflecting back on his service, he is proud of his accomplishments. Since his discharge, he has never been disciplined in the workplace, never been terminated, or accused of insubordination. He was informed by the police department that if an honorable discharge is granted, they would be honored to have a prior Service member as part of their department. His resume shows the details of his hard work and achievements. The school documents shows he is in pursuit of a degree towards becoming a law enforcement team member. He successfully took care of his family over the years and would like to set a prime example for his children. Several professional contacts in his resume can account and attest to his strong work ethic and dedication to any assigned task. After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined that the characterization of service is improper. The applicant was notified under Board Procedures, AR 635-200, the final decision for his characterization of service was to be made by the General Court Martial Convening Authority (GCMCA). The record shows that the Special Court Martial Convening Authority (SPCMA) approved the applicant's discharge with an under other than honorable conditions discharge. Therefore the Board determined that in accordance with AR 635-200, Section III, paragraph 1-19c, the least favorable characterization of service the SPCMA could have approved was a general, under honorable conditions. Therefore, the characterization of the applicant's service being improperly approved, in a records review conducted at Arlington, VA on 4 October 2017, and by a 5-0 vote, the Board granted relief by upgrading the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. This action entails a restoration of grade to E-2/PV2. (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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 29 August 2002 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 August 2002 (2) Basis for Separation: The applicant was informed of the following reasons: On 10 May 2001, he received a Company Grade Article 15 for violation of Article 86 (FTR), UCMJ. On 5 July 2001, he was counseled for failing to be at his appointed place of duty, in violation of Article 86, UCMJ. On 12 July 2001, he was counseled for failing to pay his Star Card bill, in violation of Article 134, UCMJ. On 9 August 2001, he received a Field Grade Article 15 for violation of Article 134 (Adultery), UCMJ. On 16 October 2001, he was counseled for failing to be at his appointed place of duty, in violation of Article 86, UCMJ. On 22 October 2001, he was counseled for failing to return to CQ duty, in violation of Article 86, UCMJ. On 13 February 2002, he was counseled for failing to pay a debt, in violation of Article 134, UCMJ. On 19 February 2002, he was counseled for disobeying an order, in violation of Article 92, UCMJ. On 13 March 2002, he was counseled for failing to pay a debt, in violation of Article 134, UCMJ. On 18 April 2002, he was counseled for failing to be at his appointed place of duty and making false official statements, in violation of Articles 86 and 107, UCMJ. On 30 April 2002, he was counseled for unsatisfactory living conditions, making false official statements, failing to pay debts, and failing to be at his appointed place of duty, in violations of Articles 86, 92, 107, and 134, UCMJ, respectively. On 30 May 2002, he received a Company Grade Article 15 for violations of Articles 86 (x2), 92, 107, and 134, UCMJ. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 August 2002 (5) Administrative Separation Board: Waived, 21 August 2002 (6) Separation Decision Date / Characterization: 22 August 2002 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 July 2000 / 4 years b. Age at Enlistment / Education / GT Score: 17 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-3 / 31U10, Signal Support Systems Specialist / 2 years, 1 month, 16 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for being absent without leave; failing to obey an order or regulation on several occasions; failing to be at his appointed place of duty at the prescribed time on numerous occasions; being informed that continuing unsatisfactory performance and misconduct could result in an involuntary separation; being warned for defective head lamp; receiving a delinquent bill; being arrested for wrongful cohabitation; committing adultery; failing to return to duty; failing to pay his debt; making false official statements on numerous occasions; having substandard living conditions; and being under CID investigation. CG Article 15, dated 10 May 2001, for failing to be at his appointed place of duty at the prescribed time on 3 April 2001. The punishment consisted of a reduction to E-1, forfeiture of $120, and 14 days of extra duty and restriction. FG Article 15, dated 9 August 2001, for wrongfully having sexual intercourse with a married woman, not his wife on 2 July 2001. The punishment consisted of forfeiture of $521 pay per month for two months, and 45 days of extra duty and restriction. CG Article 15, dated 30 May 2002, for failing to be at his appointed place of duty at the prescribed time on two separate occasions on 18 and 29 April 2002, failing to obey post policy on 29 April 2002, making a false official statement on 29 April 2002, and dishonorably failing to pay his debt on 21 April 2002. The punishment consisted of a reduction to E-2, forfeiture of $289, 14 days of extra duty and restriction, and an admonition. Several sworn statements without its military police report. Report of Mental Status Evaluation, dated 20 August 2002, cleared the applicant for any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 4 April 2016; applicant's resume; University of Phoenix Unofficial Transcript; and contact list of references. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, since his discharge, he has never been disciplined in the workplace, terminated, or accused of insubordination; his resume details his hard work and achievements, and the school documents shows he is in pursuit of a degree towards becoming a law enforcement team member; and he successfully took care of his family over the years. 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, paragraph 14-12b, 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. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) and to change the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. After a careful review of all the applicant's entire military records, and the issues and documents submitted with the application, the characterization of service appears to be improper. The final decision for the separation and characterization of service was to be made by the General Court Martial Convening Authority (GCMCA). The record indicates the Special Court Martial Convening Authority (SPCMCA) approved the applicant's discharge with an under other than honorable conditions discharge. In accordance with AR 635-200, Section III, paragraph 1- 19c, the least favorable characterization of service the SPCMCA could have approved was a general, under honorable conditions. The record further 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. By the incidents of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. 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 the discharge was unjust because he was never offered or permitted legal counsel in his defense during his UCMJ hearing, nor given the opportunity or offered the option to hire legal counsel prior to the court proceedings, and he was not allowed to make any statement in his defense for the accused actions under Article 138, UCMJ, and the right to counsel detailed under Article 27, UCMJ. 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 contends that he was young and made poor decisions at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant contends his current discharge restricts him from furthering his education and pursuing a strong career. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. In consideration of the applicant's post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service or to change the narrative reason for his discharge. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 14, paragraph 14-12b is "Pattern of Misconduct," and the separation code is JKA. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The discharge was not consistent with the procedural and substantive requirements of the regulation, was not within the discretion of the separation authority, and the applicant was not provided full administrative due process. 9. BOARD DETERMINATION: After carefully examining the applicant's record of service during the period of enlistment under review, the Board determined that the characterization of service is improper. The applicant was notified under Board Procedures, AR 635-200, the final decision for his characterization of service was to be made by the General Court Martial Convening Authority (GCMCA). The record shows that the Special Court Martial Convening Authority (SPCMA) approved the applicant's discharge with an under other than honorable conditions discharge. Therefore the Board determined that in accordance with AR 635-200, Section III, paragraph 1-19c, the least favorable characterization of service the SPCMA could have approved was a general, under honorable conditions. Therefore, the characterization of the applicant's service being improperly approved, in a records review conducted at Arlington, VA on 4 October 2017, and by a 5-0 vote, the Board granted relief by upgrading the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. This action entails a restoration of grade to E-2/PV2. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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: E-2/PV2 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 AR20160008309 6