1. Applicant's Name: a. Application Date: 4 March 2016 b. Date Received: 22 April 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, change the narrative reason for separation to "convenience of the government", and the RE code changed to "JKQ." The applicant seeks relief contending, in effect, his discharge was improper, inequitable, and not supported by facts. Counsel contends that the applicant's capability to serve was affected by discrimination and by the leadership's arbitrary and capricious action. Counsel further contends that the applicant's discharge was inconsistent with disciplinary standards at the time of discharge and it was inequitable due to applicant's high quality of service. The applicant's multiple commanders committed errors of fact, law, procedure and discretion throughout his time in the Army; therefore, the applicant is entitled to an upgrade. Counsel cites discrimination first occurred the evening of December 5, 2010 when the applicant was provided by SPC M with racial slurs and physically aggressive behavior. The applicant felt threatened by this behavior; therefore, responded to it assertively, which resulted in a fight between the two. The second act of discrimination, as cited by counsel, was how the applicant's leadership handled the said incident. The leadership only punished the applicant, not SPC M who was also identified as the individual that provided the alcohol to the underage Soldiers. Arbitrary and capricious actions undertaken by the command, as cited by the applicant's counsel, include the fact that the applicant received no leadership during the month following the incident. Specifically, SSG M.J.M. sent the applicant for a mental evaluation three days after the altercation and a medical evaluation seven days later, both actions suggesting that he intended to chapter the applicant out of the service without affording him the opportunity to rehabilitate. Counsel also notes that CPT W. stated on counseling statement, dated 5 December 2010, "actions stated above and continued conduct of this nature may result in...separation from the service...if this conduct continues" (emphasis added); however, such continued conduct never occurred but the applicant was separated regardless. The applicant was separated seven days after the applicant's conviction for the incident. In CPT W.'s memo explaining why the Army intended to chapter the applicant, he referenced the applicant's old Article 15s from Korea, highlighting the fight in Korea to build a case for the applicant's discharge. Thus, the applicant's rights were prejudiced thereby being discharged with a general (under honorable conditions) character of service. Counsel contends it was an error for CPT W. to initiate the chapter process against the applicant after only knowing him for 15 days and the fact that the applicant's behavior did not rise to the level of "misconduct (serious offense)." The applicant, a proud Veteran, desires an opportunity to realize his potential honorably serve his country. In a record review hearing conducted at San Antonio, TX on 21 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 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 10 March 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: Undated (2) Basis for Separation: The applicant received an Article 15 for assaulting SPC C.A.M (on or about 5 December 2010) and drinking alcohol under the age of 21 (on or about 5 December 2010). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Undated (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 February 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 November 2008 / 4 years b. Age at Enlistment / Education / GT Score: 17 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92A10, Automated Logistical / 2 years, 4 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Final/Joint, dated 23 August 2010, determined that the applicant and another person, committed sexual contact when they indecently assaulted Ms. [redacted] by grabbing her buttocks. The investigation further determined that they committed the offense of assault when they inflicted bodily harm on Mr. [redacted] and Mr. [redacted] by hitting and biting them. The investigation was conducted jointly with the Korean National Police and on 28 April 2010, the applicant received nonjudicial punishment under the provisions of Article 15, UCMJ, for Drunk and Disorderly Conduct which consisted of suspension for 90 days, ordered to forfeit $723 for two months, and to perform extra duty and restriction to post for 45 days. Military Police Report, dated 5 December 2010, reflects the applicant was apprehended for simple assault - consummated by a battery (on post) and underage drinking (on post). FG Article 15, dated 12 January 2011, for assaulting another Soldier and for consuming alcohol while under the age of 21. The punishment consisted of a forfeiture of $733 pay per month for two months (suspended) and extra duty and restriction for 45 days. Developmental Counseling Form for underage drinking and assaulting another Soldier. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 8 December 2010, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a clear thinking process. The applicant was diagnosed with (Axis I) Phase of Life Problem V62.89. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with his 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 identifies the appropriate reentry code to assign the Soldier based on the narrative reason for discharge. 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." 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, change the narrative reason for separation to "convenience of the government", and the RE code changed to "JKQ." 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. Counsel contends the narrative reason for the separation should be changed to "Convenience of the Government." However, the applicant was separated under the provisions of AR 635- 200, Chapter 14, paragraph 14-12c, 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. Counsel cites the applicant felt threatened by SPC M's use of racial slurs and physically aggressive behavior; therefore, the applicant responded to it assertively, which resulted in a fight between the two. However, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. Counsel points out that the leadership only punished the applicant, not SPC M who was identified as the individual that provided the alcohol to the underage Soldiers. Counsel contends that the applicant's discharge should be upgraded and the narrative reason changed because other Soldiers with similar offenses or greater offenses have been granted relief. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. Counsel contends that the applicant received no leadership during the month following the incident and was not afforded the opportunity to rehabilitate. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. After reviewing the applicant's discharge packet, the separation authority properly waived the rehabilitative requirements. Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. Counsel also contends that the applicant's leadership intended to discharge him immediately following the misconduct. The applicant was discharged exactly seven days following the conviction. However, 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. Counsel further contends that the applicant's discharge is improper because the incidents of misconduct used as the basis to discharge the applicant were minor in nature and/or occurred at a prior duty station. Furthermore, this punishment was required to be removed from the applicant's local military personnel record upon his change of station. However, AR 635-200 provides that commanders may consider prior incidents during the period of enlistment under review on the issue of retention or separation. Further, the applicant was serving in his initial enlistment at the time of the separation proceedings. The applicant's period of service under consideration indicates he committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline, which justified the characterization of service awarded. 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 reentry eligibility (RE) codes if appropriate. 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 record review hearing conducted at San Antonio, TX on 21 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 AR20160008346 1