1. Applicant's Name: a. Application Date: 20 January 2017 b. Date Received: 24 April 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to general (under honorable conditions) or honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, his Army record speaks for itself. His discharge was inequitable, because it was based on a state criminal prosecution and conviction by local authorities during 13 years, 9 months of active duty service with no other adverse action. He requests and upgrade of his discharge to receive VA benefits. In a records review conducted at Arlington, VA on 24 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: Unacceptable Conduct / AR 608-8-24, Paragraphs 4-2b / JNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 28 November 2012 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 15 December 2011 (2) Basis for Separation: The applicant was required to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b(5) and 4-2b(8) because of misconduct, moral or professional dereliction, or in the interests of national security. He was notified of the following reasons: On 19 April 2011, in the District Court of the Fifth Judicial District of the State of Oklahoma (Sitting in and for Comanche County), the following charge was filed against him: Count: Murder in the First Degree-21 O.S. § 701.7(c) a felony, on or about 23 December 2010, by causing the death of M.R. (his stepchild), a child under the age of eighteen (18) years, to-wit: 10 years old, as a result of the said defendant willful and malicious injuring or use of unreasonable force, to-wit: blunt force trauma to the head and body of M.R., which thereafter cause M.R. to languish and die on 23 December 2010. The crime is punishable by death, imprisonment for life, or imprisonment for life without parole. On 3 May 2011, he appeared in court on the subject charge and entered a plea of not guilty. Trial was initially set for 9 September 2011, but on 9 September 2011, the case was rescheduled for 13 January 2012 (jury trial). (3) Recommended Characterization: On 9 February 2012, the Commanding Officer, Headquarters, United States Army Fires Center of Excellence and Fort Sill, OK, recommended the applicant be involuntarily separated from the Army with a General (Under Honorable Conditions Discharge. On 23 August 2012, the Commanding Officer, Headquarters, United States Army Fires Center of Excellence and Fort Sill, OK, recommended approval of the applicant's resignation request and that he be issued an Under Other Than Honorable Conditions Discharge due to the heinous nature of his actions. (4) Legal Consultation Date: On 2 July 2012, the applicant consulted with legal counsel. The applicant also voluntarily tendered his resignation from the Army under the provisions of AR 600-8-24, Chapter 4, in lieu of further elimination proceedings. (5) Administrative Separation Board/BOI: The applicant elected to waive his right have to appear before a board of officers with legally qualified counsel. (6) Separation Decision Date / Characterization: On 12 March 2012, The Department of the Army Ad Hoc Review Board has reviewed the Probationary Officer Elimination Case on the applicant. The elimination was based on misconduct and moral or professional dereliction (AR 600-8-24, paragraph 4-2b). The DASA directed the case be returned to the General Show Cause Authority. In accordance with Army Regulation 600-8-24, 4-20(i)(3) and 4-24(g), further directed a BOI be conducted and authorized to recommend an* Under Other than Honorable Conditions characterization of service be conducted, or other action as the Commanding General deems appropriate. On 31 October 2012, the Deputy Assistant Secretary (Army Review Boards), reviewed the recommendation of the Commanding General, Headquarters, United States Army Fires Center of Excellence and Fort Sill, OK, to accept the Resignation in Lieu of Elimination tendered by the applicant. This elimination was based on misconduct and moral or professional dereliction (AR 600-8-24, paragraph 4-2b), and accepted his resignation and discharged him from the United States Army with an Under Other Than Honorable Conditions characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 April 2009 / NIF b. Age at Enlistment / Education / GT Score: 36 years / 2 years college / NA c. Highest Grade Achieved / MOS / Total Service: O-2 / 13A, Field Artillery / 13 years, 9 months, 3 days d. Prior Service / Characterizations: RA, 20 March 1997 to 13 September 2000 / HD RA, 14 September 2000 to 20 January 2004 / HD RA, 21 January 2004 to 27 March 2005 / HD RA, 28 March 2005 to 28 April 2006 / HD RA, 28 April 2006 to 1 April 2009 / HD Appointed 2LT/RA, 2 April 2009 / NA e. Overseas Service / Combat Service: Germany / SWA / Iraq, 10 March 2006 to 21 April 2007, both prior service. f. Awards and Decorations: ARCOM-3, AAM-2, AGCM-3, NDSM, ICM-CS, GWOTSM, NOPDR-2, ASR, OSR-2 g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation, dated 20 October 2011, relates the applicant was under investigation for murder in the first degree. i. Lost Time / Mode of Return: Civilian Confinement for 700 days, 23 December 2010 to 28 November 2012 j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service 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 "JNC" as the appropriate code to assign officer Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from under other than honorable conditions to general (under honorable conditions) or honorable and a change to the narrative reason for separation. The applicant's record of service and the issues submitted with his application were carefully reviewed. 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant' unacceptable conduct diminished the quality of his service below meriting a general (under honorable conditions) or an honorable discharge at the time of separation. The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained on Active Duty. The applicant requests a change to the narrative reason for separation. 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 "JNC" as the appropriate code to assign officer Soldiers, who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. The regulation further stipulates no deviation is authorized. The applicant seeks relief contending, his Army record speaks for itself. The applicant's service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered. The applicant further contends, his discharge was inequitable, because it was based on a state criminal prosecution and conviction by local authorities during 13 years, 9 months of active duty service with no other adverse action. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of an officer Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization of service. 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 requests an upgrade of his discharge to receive VA benefits. 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. 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 24 August 2018, 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 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 AR20170008189 1