1. Applicant's Name: a. Application Date: 14 December 2017 b. Date Received: 22 December 2017 c. Counsel: 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, was never in any disciplinary trouble. The First Sergeant's bias became more and more pronounced. The applicant was never allowed the opportunity to write a statement and was never told what the outcome was. The punishment was selective and excessive. Legal representation never spoke with the applicant other than to tell the punishment. The First Sergeant used rank and position to coerce and intimidate others in this process that ultimately led to a wrongful discharge. The applicant requests rank to be restored to E-3 and desires to receive all benefits and privileges that go with an honorable discharge. In a records review conducted at Arlington, VA on 23 January 2019, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length of service, the circumstances surrounding the discharge, and as a result it is inequitable. 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 / AR 635-200, Paragraph 14-12a / JKN / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 9 October 2003 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 4 September 2003 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; on 27 August 2003, he received an Article 15 for absenting himself from his unit and for willfully disobeying a lawful order from a noncommissioned officer. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 September 2003 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 September 2003 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 January 2002 / 3 years b. Age at Enlistment / Education / GT Score: 22 years / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Specialist / 1 year, 8 months, 12 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Mental Status Evaluation, dated 5 August 2003, revealed the applicant met the retention standards prescribed in Chapter 14-12b, and there is no psychiatric disease or defect, which warrants disposition through medical channels. He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in administrative/board proceedings. He was psychiatrically cleared for any administrative action deemed appropriated by Command. The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); issues continuation (two pages); DD Form 214; and four negative counseling statements. 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 Army allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation. Paragraph 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 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. By the documented misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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, he was never in any disciplinary trouble. The applicant is to be commended for his effort. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant further contends, his first sergeant's bias became more and more pronounced. Although the applicant alleges that he was a victim of bias during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant also contends, he was never allowed the opportunity to write a statement and he was never told of the outcome; and his legal representation never spoke with him other than to tell the punishment he would receive. 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 these contentions. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was allowed the opportunity to write a statement and he did not consult with legal counsel. The applicant additionally contends, his punishment was selective and excessive; and his first sergeant used his rank and position to coerce and intimidate others in this process that ultimately led to his wrongful discharge. 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 applicant request his rank be restored to E-3. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. Lastly, the applicant desires to receive all benefits and privileges that go with an honorable discharge. 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 23 January 2019, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length of service, the circumstances surrounding the discharge, and as a result it is inequitable. 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: 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 AR20180000505 1