1. Applicant's Name: a. Application Date: 29 August 2017 b. Date Received: 1 September 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable and that rank be restored. The applicant seeks relief contending, in effect, that the chain of command (COC) denied the applicant of legal and regulatory protections from the start to include unlawful denial of emergency leave to attend to the injured mom that cut pay and AER resources and hampered the return from leave. Failure to return to military control at the US Embassy after the applicant was declared AWOL on 26 September 2013, and an inequitable separation from a biased separation board that ignored false statements (that surfaced as new evidence at the board) and did not follow the law and regulations denying proper due process. The board decided to focus on the number of leave days the applicant should have gotten, the AER, and the American Red Cross instead of focusing on the fundamental issue that it was a case of emergency leave and how it should have been administered. The applicant was made to fail to return because CPT D. chose to follow feelings instead of regulations mandating that the commander grant the applicant emergency leave to take care of the injured mother, while on leave, as was expected of the applicant to treat all or any other Soldier. The applicant was treated unequally. In the Manual for Courts-Martial (MCM) an inability to return while on leave does not constitute AWOL. The applicant's inability to return from leave and the related, cascading failures were not the applicant's fault. The commander denied leave, cut pay, and the Army Emergency Relief (AER), both vital financial life lines, Appendix (A4) without the help of an investigation by the American Red Cross (ARC) A5 and with COC, abandoned the applicant and did not take any action to help the applicant get back. The applicant reported to the US Embassy/AFRICOM, where they should have returned the applicant to military control (RMC) in concerted effort, A6a - e, and 7. At the board, CPT T. summarily declared that the applicant was on one's own. The leaders flouted the regulations and had no document evidence of any assistance to the applicant or reason for denial on the unit leave form copy IAW AR 600-8-10 table 6-1. The applicant was wrongfully made to answer to an infamous crime of AWOL, at (an improperly run) separation board that denied constitutional right to proper and adequate due process and equal opportunity as afforded by the fifth and fourteenth amendments (Amendments V and XIV) and AR's. Most of which protections would have been available at a SPCM. In a records review conducted at Arlington, VA on 22 May 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, and a prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 9 December 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 July 2015 (2) Basis for Separation: The applicant was informed of the following reason: for being absent from his unit without authority from 26 September 2013 until he was apprehended on 4 December 2014 (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 31 July 2015 (5) Administrative Separation Board: The applicant requested consideration of his case by an administrative separation board. On 6 October 2015 the applicant was ordered to appear before an administrative separation board. On 21 October 2015, the administrative separation board convened and recommended separation with an under other than honorable conditions discharge. (6) Separation Decision Date / Characterization: 13 November 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 April 2012 / 3 years b. Age at Enlistment / Education / GT Score: 46 / 14 years / 126 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91J20, Quartermaster and Chemical Equipment Repairer / 14 years, 9 months, 29 days d. Prior Service / Characterizations: USN, 24 September 1997 to 18 February 2004 / HD RA, 18 April 2007 to 25 October 2009 / HD RA, 26 October 2009 to 3 April 2012 / HD The DD Form 214 under review makes reference to 11 months and 25 days of prior inactive service; however, evidence supporting this information was not found in the record. e. Overseas Service / Combat Service: SWA / Iraq (12 September 2008 to 14 September 2009) f. Awards and Decorations: ARCOM, CGMUC, NAVE, NCM, NDSM, AFEM-2, GWOTSM, ICM-2CS, NOPDR, ASR, OSR, NRS-2S g. Performance Ratings: 31 August 2011 to 30 August 2012, Fully Capable 31 August 2012 to 30 August 2013, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 8, dated 14 July 2015, which shows action was withdrawn and forwarded to the subordinate commander for disposition. Counseling statement reference recommendation for court martial dated 12 January 2015. i. Lost Time / Mode of Return: AWOL 436 days (26 September 2013 to 4 December 2014) / apprehended and civilian confinement 4 days (5 December 2014 to 8 December 2014). j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; and exhibits 1-29 and appendix's as noted in sections 8 and 14 of the DD Form 293 submitted by the applicant. 6. POST SERVICE ACCOMPLISHMENTS: None submitted by the applicant. 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, 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 under other than honorable conditions discharge to honorable and that his rank be restored. The applicant's record of service, the issues and documents 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 military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. 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 seeks relief contending that his chain of command denied him of all his legal and regulatory protections from the start to include unlawful denial of emergency leave to attend his injured mom that cut his pay and AER resources and hampered his return from leave; failure of a return to military control at the US Embassy after he was declared AWOL on 26 September 2013, and an inequitable separation from a biased separation board that ignored false statements (that surfaced as new evidence at the board) and did not follow the law and regulations denying him proper due process. The board decided to focus on the number of leave days he should have gotten, the AER, and the American Red Cross instead of focusing on the fundamental issue that it was a case of emergency leave and how it should have been administered. The applicant's contentions were noted; 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his chain of command denied him of all his legal and regulatory protections from the start to include unlawful denial of emergency leave to attend his injured mom that cut his pay and AER resources and hampered his return from leave. The evidence of record shows the applicant requested an extension of leave to care for his mother. The applicant's extension was denied (when an extension is not approved, the Soldier/applicant will return to duty at the proper time); on 24 September 2013, the applicant's approved leave ended and he did not return because he was caring for his mother. The applicant chose to stay and take care of his mother even though he knew his leave extension had been denied. After his mother completed her recovery, he realized that he had misplaced his green card. He began the process to replace his green card and receive a visa to return. He later was involved in an auto accident on 5 December 2013 which place him in the hospital. He completed treatment in February at which point he again began the attempts to return to his unit. He was able to gain a reentry permit and a plane ticket on 19 November 2014. He flew back to the United States on 4 December 2014 when he was apprehended at the airport 436 days after his original return date of 24 September 2013. As noted in the administrative separation board proceedings; as stated by "SFC A.C.W. the applicant had requested 45 days leave in August 2013 which was denied by the commander. The commander did not feel the applicant deserved 45 days and offered him instead 30 days. The applicant was unhappy with the denial 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. 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 applicant requested that his rank be restored. However, the applicant's requested change does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization 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 22 May 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, and a prior period of honorable service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: egend: 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 AR20170017081 1