1. Applicant's Name: a. Application Date: 9 September 2016 b. Date Received: 13 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, a change to his narrative reason for separation, and a change to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, his discharge was unjust because the charges against him were dropped; therefore, he was never convicted in civil court. Prior to that incident, the applicant states that he had never been in any trouble, his career up to that point had been without any incident, and he was considered a good Soldier. The applicant feels that his lack of understanding was taken advantage of by his superiors. The applicant contends that had he known the impact of receiving an "Other Than Honorable" discharge, he would have requested an administrative board and would not have signed any paperwork regarding his discharge. Since his discharge and due to his characterization of service, the applicant has encountered difficulties finding employment, as well as to find adequate employment to fund his way through school. In a personal appearance hearing conducted at San Antonio, TX on 23 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 (Civil Conviction) / AR 635-200 / Chapter 14-9, Section II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 1 October 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 August 2005 (2) Basis for Separation: Conviction by a foreign tribunal. On 12 April 2005, the applicant was convicted by the Uijongbu District Court of violating Articles 331 and 38 of their Criminal Code (larceny, on 25 and 26 December 2004, of money, US Dollars and Won and property, totaling more than $9000.00, also damaged other property not included in this amount) and he was sentenced to imprisonment for 8 months, suspended for a period of 2 years. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 August 2005 (5) Administrative Separation Board: Waived, 4 August 2005 On 8 August 2005, the intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. On 11 August 2005, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general (under honorable conditions). On 2 September 2005, the separation authority after reviewing the applicant's request for a conditional waiver, disapproved his request. The separation action was referred to the 2nd Infantry Division Standing Administrative Separation Board. On 8 September 2005, the applicant once again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board. (6) Separation Decision Date / Characterization: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 April 2004 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / 115 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 1 year, 5 months, 12 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, KDSM, ASR, GWOTSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Trial Observer Report, JAG-58, details the alleged offenses that took place on December 25th and 26th at the King's Club, the Sea Club, the Peace Club, and the Rendezvous Club, all of which were located in Dongducheon City. The report indicates the trial was conducted on 12 April 2005 and during that trial, the applicant, along with another Soldier, Specialist J.P.D., were asked by the prosecutor if they committed the alleged offenses, in which both had answered "yes." The prosecutor recommended 18 months in jail; however, on 14 June 2005, they were sentenced to eight months imprisonment, suspended for two years. Two negative counseling statements for failure to obey an order, willful misconduct, and notification of separation from the Army under Chapter 14-9 (conviction by foreign tribunal). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of a DD Form 293; a self-authored letter; four private settlement-general releases; and an email reference non-receipt of a prior application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Misconduct (Civil Conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable, a change to his narrative reason for separation, and a change to his reentry eligibility (RE) code. The record confirms 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 appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for misconduct (civil conviction) is "JKB" and the RE code is 3. The regulation further stipulates that no deviation is authorized. 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 that his lack of understanding was taken advantage of by his superiors. 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. The applicant contends that, had he known the impact of receiving an "Other Than Honorable" discharge, he would have requested an administrative board and would not have signed any paperwork regarding his discharge. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was not provided adequate council regarding his separation. In fact, evidence found in the record indicates the applicant acknowledged several times that he had been advised by his consulting counsel of the basis for the contemplated action to separation him for conviction by a civil court in a foreign country. 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. The applicant contends that, prior to the misconduct, he had never been in any trouble, his career had been without any incident, and he was considered a good Soldier. The applicant's service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceedings were carefully considered. The applicant has expressed his desire to have better job opportunities and the benefits of the GI Bill. 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. Further, 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents. b. The applicant presented no additional contentions. b. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at San Antonio, TX on 23 March 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20160016093 1