1. Applicant's Name: a. Application Date: 23 January 2017 b. Date Received: 7 February 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, the final punishment (discharge from the Army) greatly exceeded the maximum that could be awarded by a Summary Court-Martial for the applicant's grade of E-3. The evidence used during the Summary Court-Martial was insufficient on its face and lacking in content. The applicant was denied the opportunity to have the Summary Court- Martial Conviction reviewed and relief granted under Article 69(b), Uniform Code of Military Justice. The applicant was discharged from the Army because of not being provided effective legal representation. In a personal appearance hearing conducted at Arlington, VA on 13 August 2018, 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, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 10 January 2013 c. Separation Facts: No (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 February 2011 / 3 years b. Age at Enlistment / Education / GT Score: 24 years / 1 year college / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 31E10, Internment / Resettlement Specialist / 1 year, 10 months, 19 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Cuba, 9 July 2011 to 11 February 2012 f. Awards and Decorations: NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant submitted a CID Report of Investigation, dated 14 August 2012, which relates that the he was under investigation for failing to obey a general order. The applicant submitted a Summary Court-Martial, dated 26 September 2012, which found him guilty of violating a lawful general order, by unlawfully possessing "Syn" (synthetic cannabis) and larceny of a value less than $500. He was sentenced to reduction to PVT / E-1 and forfeiture of $994 pay. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214; Attachment A, Chapter 14, separation for misconduct (two pages); Attachment B, CID Report of Investigation (three pages); Attachment C, Agent's Investigation Report (A.L.); Attachment D, Rights Warning Procedure / Waiver Certificate; Attachment E, Memorandum for Record; Attachment F, Sworn Statement, W.C.C. V., page 1 of 4; Attachment G, Sworn Statement, W.C.C. V., page 2 of 4; Attachment H, Record of Trial by Summary Court-Martial; Attachment I, Pleas and Findings of PFC C.C.M.; Attachment J, Application for Relief From Court-Martial finding and / or Sentence; Attachment K, Appeal Statement of Private C.C. M.; Attachment L, Action Pursuant to Article 69(b); and Attachment M, Appeal Letter to LTG F.D.D., from PVT C.C.M., dated 6 June 2014. Additional documents: applicant's letter; CID Report (three pages); agent's investigation report; rights warning waiver certificate; sworn statement (two pages); clarification for DD Form 2329, block 11 memorandum; Summary Court-Martial; application for relief from court-martial findings and / or sentence (two pages). 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. 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, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of JKQ (i.e., misconduct (serious offense) with a reentry eligibility (RE) code of 3 The applicant seeks relief contending, his final punishment (discharge from the Army) greatly exceeded the maximum that could be awarded by a Summary Court-Martial for his grade, E-3. The evidence submitted by the applicant shows that the Summary Court-Martial did not discharge the applicant from the Army as he believes. The court-martial reduced the applicant to E-1 with a forfeiture of $994 pay. The DD Form 214 further shows he was discharged under provisions of AR 635-200, Chapter 14-12c, misconduct (serious offense). The applicant further contends, the evidence used during his Summary Court-Martial was insufficient on its face and lacking in content. The applicant submitted a formal CID Investigation with his application, which substantiated the charges that formed the basis for the Summary Court-Martial. During the CID investigation, video footage which depicted on 17 July 2012, the applicant purchased Spice from Ten Minute T-Shirts. The investigation determined that probable cause to believe the applicant committed the offense of failure to obey a general order when he possessed Spice. On 7 August 2012, the applicant was advised of his legal rights, which he waived and admitted he purchased and possessed spice. The applicant also contends, he was denied the opportunity to have his Summary Court-Martial Conviction reviewed and relief granted under Article 69(b). The applicant submitted an application for relief pursuant to Article 69b, Uniform Code of Military Justice, specifically to include the assignments of error, the record of trial, and all relevant documentation was carefully reviewed. On 29 January 2013, Office of The Judge Advocate General, Criminal Law Division, Chief, Programs Branch, found that the applicant had not established a proper and specific basis for relief under one or more of the enumerated statutory grounds. Accordingly, his Application for Relief was denied. The applicant additionally contends, he was discharged from the Army because he was not provided effective legal representation. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged and was not provided effective legal counsel. It is the applicant's responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 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 that 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 the following additional document(s): None b. The applicant presented the following additional contention(s): Narrative Reason Change c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 13 August 2018, 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 Authority to: No Change e. Change SPD / RE Code 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 AR20170003376 4