1. Applicant's Name: a. Application Date: 11 May 2016 b. Date Received: 20 May 2016 c. Counsel: Mr. Devin Bissman, Equal Justice Works Fellow, Swords to Plowshares, 1060 Howard Street, San Francisco, CA 94103 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant is seeking relief contending, in pertinent part and in effect, that his discharge was improper because he did not commit a serious offense and he did not violate AR 190-5. His discharge is inequitable because there was an unreasonable delay before his discharge proceedings were initiated; there is substantial doubt he would have received the discharge, if relevant current policies and procedures were available, such as the Hawaii's implied consent statute being ruled unconstitutional and invalid; and he served honorably for nearly five and one-half years. The applicant provided a detailed account of the incidents and events surrounding his discharge. While the incident occurred on 8 June 2013, on 5 December 2013, both counts of operating a vehicle under the influence of an intoxicant and refusal to submit to a breath, blood, or urine test, were dismissed by the Court with prejudice, because the prosecuting attorney failed three times to appear and a Motion to Dismiss was granted. More than a year after his arrest and seven months after the charges were dismissed, he was notified on 24 June 2014, of the intent to involuntarily separate him. His record is void of any other misconduct, other than the 8 June 2013, driving incident. His arrest report did not include any field notes regarding blood-alcohol breathalyzer-several attempts were made but the instrument was unable to complete its analysis. It displayed, "Deficient Sample: reading. He asserts he was not at fault for the instrument's failure. His attempt to provide breath sample should be distinguished from failing to provide a breath sample. He served in support of OIF and during his two terms of service, he received numerous citations and awards. His service was honorable because of his meritorious service. The driving incident was an isolated incident. An upgrade would help him with his current employment prospects. Per the Board's Medical Officer, based on the information available for review at the time, the applicant has two mitigating Behavioral Health Disorders - PTSD and TB I- for the misconduct leading to his discharge from the Army. As PTSD is associated with the use of alcohol to self- medicate PTSD symptoms and TBI is associated with poor impulse control and impaired judgment (especially in the presence of alcohol), there is likely a nexus between his PTSD and TBI and his two DUIs. JLV indicates that applicant is rated as 90 percent service connected, 80 percent of which is for PTSD. His PTSD is rated as severe. VA Problem List lists the following Behavioral Health diagnoses: PTSD, Chronic, severe; Diffuse TBI with Loss of Consciousness; Other Depressive Disorder. In a records review conducted at Arlington, VA on 2 August 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, prior period of honorable service, and the circumstances surrounding his discharge (i.e. 80 percent PTSD at VA with TBI) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (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: 8 September 2014 c. Separation Facts: NIF; however, according to the applicant's documentary evidence: (1) Date of Notification of Intent to Separate: 24 June 2014 (2) Basis for Separation: The applicant operated a motor vehicle under the influence and failed to submit a testable breath sample on 8 June 2013. (3) Recommended Characterization: the unit commander recommended, Under Other Than Honorable Conditions, but according to the Trial Counsel's memorandum, dated 30 July 2014, and the battalion commander recommended, General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 7 August 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 August 2012 / 3 years, 15 weeks b. Age at Enlistment / Education / GT Score: 32 / Technical Diploma in Aircraft Mechanics / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91B10, Wheeled Vehicle Mechanic / 6 years, 8 months, 13 days d. Prior Service / Characterizations: RA (26 November 2007 to 2 March 2011) / HD IRR/ARNG (3 March 2011 to 21 August 2012) / NA e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (14 December 2008 to 28 November 2009) f. Awards and Decorations: ARCOM; AGCM; NDSM; ICM-2CS; GWOTSM; ASR; OSR; MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 18 August 2013, indicates the applicant was reprimanded for operating a motor vehicle while under the influence of alcohol. There is no negative counseling statement or action under the UCMJ available. The applicant was discharged at the grade of E-4/SPC. Discharge Orders i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 May 2016, with attorney-authored brief on behalf of the applicant; Honolulu Police Department Records; Report to Suspend Favorable Personnel Action (FLAG), dated 10 June 2012; Enlisted Record Brief; National Highway Traffic Safety Administration Standardized Field Sobriety Testing Procedures; civilian Court documents; Army Substance Abuse Program (ASAP) memorandum for record, dated 8 October 2013; GOMOR, dated 18 August 2013; unit commander's separation action notification, dated 24 June 2014; separation authority's decision memorandum, dated 7 August 2014; trial counsel's (JA's) legal review, dated 30 July 2014; DD Form 214; extracted copy of West Hawaii Reports and Pacific Reporter; DD Form 214, dated 2 March 2011; and unit commander's forwarding memorandum, undated. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable 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. Although the applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army, his 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's record also contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature and the separation authority's decision memorandum. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's contentions based on impropriety and inequitable bases were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service and the merits of his issues. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced sufficient evidence to support his contentions that he may have been unjustly discharged, or to support changes to the characterization of service granted and the narrative reason for his discharge. The applicant's statements with counsel-authored brief do not overcome the presumption of government regularity and the application contains no documentation or further sufficient evidence in support of this request for an upgrade of the discharge and a change to the narrative reason for his discharge. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, 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. The applicant contends that the basis for his discharge was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant contends an upgrade would help him with his current employment prospects. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 14-12c is "Misconduct (Serious Offense)," as approved by the separation authority, 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. 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 2 August 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, prior period of honorable service, and the circumstances surrounding his discharge (i.e. 80 percent PTSD at VA with TBI) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / No change to RE code f. Restore 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 AR20160009555 5