1. Applicant's Name: a. Application Date: 26 April 2017 b. Date Received: 10 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant, seeks relief contending, in pertinent part and in effect, the request is based on reasons of propriety and equity. The applicant was discharged seven days prior to an ETS date. The applicant was young, scared, and accused of committing a crime one did not commit, when the applicant agreed to a separation prior to the Article 15 hearing. At that point, the applicant was anxious to leave the Service because of being treated like a criminal. The applicant was found not guilty for the alleged offenses under Article 121, UCMJ, due to the testimonies of the applicant, the victim, and the defense counsel at the hearing. Therefore, if there was no evidence for the Article 15, then the offense, basis for discharge proceedings, clearly did not warrant a punitive discharge. The applicant not only suffered from the injustice of being wrongfully accused, but continues to suffer from the injustice of the reason for separation. According to AR 635-200, paragraph 14- 12c, for commission of a serious offense, the applicant can be separated "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 MCM.'" As of 9 November 2016, when it was learned that the command had not imposed the Article 15, the discharge proceedings should have paused, since its basis was the alleged theft. In a records review conducted at Arlington, VA on 16 January 2019, 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 November 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 September 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On 29 February 2016, he committed the offense of larceny of private property/funds (Article 121, UCMJ), by using stolen credit cards to purchase two Apple Macbooks. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 September 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 October 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 November 2013 / 5 years b. Age at Enlistment / Education / GT Score: 22 / Bachelor of Arts Degree / 139 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 2 years, 11 months, 22 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statement for being flagged for an involuntary separation. MPI Investigator's Statement with its associated documents, dated 17 June 2016, indicates the applicant was the subject of an investigation for larceny of private property/funds. Report of Mental Status Evaluation, dated 16 September 2016, indicates the applicant had the mental capacity to understand and participate in any administrative proceedings deemed appropriate by his command. There is no record of any action under the UCMJ. The applicant was separated at the rank of SPC/E-4. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 26 April 2017, with attorney-authored brief and its listed enclosures. 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. The record confirms that 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. By the serious incident of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. The applicant contends the discharge was unjust because he was wrongfully accused of a crime he did not commit, and subsequently, he was found not guilty of the alleged offense at his Article 15 hearing. 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. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," 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. A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant's command. 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 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 16 January 2019, 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 AR20170010004 1