1. Applicant's Name: a. Application Date: 15 September 2016 b. Date Received: 29 September 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. The applicant seeks relief contending, in effect, his discharge should be corrected to honorable because he completed his enlistment contract. The basis for his discharge was due to a charge that he was not convicted of and it was dropped after his discharge. In addition, he knows his command wanted to punish him because they felt threatened by his sexual orientation. In a records review conducted at Arlington, VA on 6 December 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: NA / AR 135-178 / NA / Under Other Than Honorable Conditions b. Date of Discharge: 4 April 2016 c. Separation Facts: (Complete separation file NIF; however, according to available record, the applicant's previous approved separation action that was suspended for a period of 12 months on 29 June 2015, was vacated on 12 March 2016.) (1) Date of Notification of Intent to Separate: 19 October 2014 (NIF) (2) Basis for Separation: The applicant was informed of the following reasons: Preponderance of evidence shows the applicant illegally used drugs and tested positive for THC based on a unit random urinalysis conducted on 7 September 2014. On 3 March 2016, the battalion commander recommended discharging the applicant because he was given ample opportunity to correct his behavior; however, his latest lapse in judgment involved domestic battery, and admitting that he would not pass a urinalysis. The suspended separation of 29 June 2015, according to AR 135-178, paragraph 2-5, by the GCMCA, was vacated due to the applicant be arrested for burglary with assault or battery, that he admitted to his chain of command that he may fail another urinalysis, and a local police officer informed the chain of command that the applicant has been witnessed in a state of intoxication multiple time; thereby, violating the terms of his suspended separation. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (However, on 2 July 2015, the applicant acknowledged receipt of the GCMCA's suspension of his separation per memorandum, dated 29 June 2015, and he also acknowledged that in return for the opportunity at rehabilitation, he withdrew any election of rights, that he waived all rights that he may have to counsel or to appear before a separation board should his suspension of separation be vacated for any reason during the probationary period. (5) Administrative Separation Board: Waived on 2 July 2015 (6) Separation Decision Date / Characterization: 12 March 2016 (the suspended separation, dated 29 June 2015, was vacated) / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 January 2010 / 8-year MSO (USAR) with 6 years in TPU b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 35M10, Human Intelligence Collector / 6 years, 2 months, 7 days d. Prior Service / Characterizations: USAR (28 January 2010 to 2 August 2010) / NA IADT (3 August 2010 to 23 June 2011) / HD USAR (24 June 2011 - Continuous Service) e. Overseas Service / Combat Service: None / None f. Awards and Decorations: ARCAM; NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Serious Incident Report (SIR), dated 13 September 2015, indicates the applicant was reported to have been found in a local parking lot drunk and unconscious on 12 September 2015, and on 13 September 2015, he was found drunk at the same parking lot, but there were no pressing of charges. Civilian Police Department Offense Report, dated 22 September 2015, indicate the applicant was the subject of an investigation for burglary - with assault or battery. A subsequent SIR also reported the applicant was arrested on 22 September 2015, and appeared before a judge on 23 September 2015. He was found indigent and appointed a public defender with bond set (with conditions and ankle monitor), and an arraignment was set for 3 November 2015. Civilian court Domestic Violence Pre-Trial Diversion Referral, dated 4 December 2015, shows a court date of 6 January 2016, the date that the applicant acknowledged receiving the referral, which states as follows: "I acknowledge receipt of this referral and understand that I must report to probation within seventy-two (72) hours of my court appearance to set up an appointment to sign my contract, and that the contract must be signed at least ten (10) days prior to my next court date or this offer may be withdrawn. I hereby waive my right to a speedy trial and request the case be abated. I understand that if l successfully complete the Domestic Violence Pre-Trial Diversion Program, the State of ... will not proceed on the above-styled case." Sworn statement, dated 8 November 2015, rendered by the acting First Sergeant, indicates that on 8 November 2015, an interview with the applicant revealed that he (the applicant) attended a court on 3 November 2015, and that the charges were reduced to a misdemeanor assault charges. i. Lost Time / Mode of Return: NIF / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application, dated 15 September 2016; 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. The characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. 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 submitted with his application were carefully reviewed. The applicant's available record confirms his previous approved separation was suspended for a period of 12 months, which is not available. It further confirms that based on his subsequent misconduct within the 12-month period, the vacation of the suspended 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 sufficient evidence that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained in the US Army Reserve. The applicant contends his discharge should be corrected to honorable because he completed his enlistment contract. However, his enlistment in the US Army Reserve shows his enlistment obligated him to a total of eight years in the Armed Forces, and by executing that enlistment, he incurred the statutory military service obligation of eight years and a contractual obligation to serving six years as an assigned member of a troop program unit (TPU) and two years as an assigned member of the Individual Ready Reserve, unless he voluntarily elected to remain assigned and continued to satisfactorily participate as a member of a TPU. The available record also confirms the basis for his separation was initiated and suspended in 29 June 2015, within the eight-year MSO and within the six-year TPU assignment. The applicant contends that the charges against him were dropped after his discharge. However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen. In this case, the charges were deferred based on the applicant accepting a nine-month "Domestic Violence Pre-trial Diversion Program, with the understanding of completing the recommended sanctions or stipulated conditions. The applicant's contention that his discharge was unfair because his command wanted to punish him due to feeling threatened by his sexual orientation was 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 any 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 evidence has been provided with the request for an upgrade of the discharge. 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 6 December 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160016060 1