1. Applicant's Name: a. Application Date: 30 June 2018 b. Date Received: 13 July 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable or uncharacterized and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, was not adequately notified of the separation proceeding, thus violating due process rights. The applicant was not allowed to participate in the separation process as authorized by AR 135-178. The unit failed to contact the applicant personally by a simple phone call notification. The charges against the applicant for the alleged criminal misconduct were dropped by the Florida State Attorney's Office. The applicant committed no crime, nor misconduct warranting separation. The applicant requests expungement of the separation from military records. On 11 June 2018, the applicant request for a review and correction of discharge. The Florida National Guard, Adjutant General reviewed the documents and determined that the applicant was properly notified and that the discharge characterization stands. In a Travel Panel hearing conducted at Warner Robins, GA on 27 February 2019, and by a 5-0 vote, the Board determined that the discharge was too harsh based on 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 of the characterization of service to uncharacterized and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 135-178, Paragraph 12-1b / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 8 May 2013 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 29 November 2012 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; misconduct. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The available record does not contain the applicant's completed election of rights and government regularity is presumed in the discharge process. The applicant had to respond within 30 calendar days after receipt of the notification memorandum, unless he requested and received an extension. Failure to respond within 30 calendar days of the date of his receipt of the notification memorandum constituted a waiver of his rights. The record of evidence shows that the applicant did not respond within the time frame allocated. (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 30 April 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: ARNG / SMP / ROTC, 26 August 2011 / 8 years b. Age at Enlistment / Education / GT Score: 21 years / 2 years college / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 09R10, SMP / None / 1 year, 8 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: 19 May 2012 to 17 July 2012, Met The Standard 19 July 2012 to 8 August 2012, Best Qualified h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); Letter, Departments of the Army and The Air Force, Florida National Guard, Office of The Adjutant General; attorney's brief (three pages); self-authored statement (four pages); discharge orders, 129-026; U.S Postal Service, certified mail; person cases, circuit felony; Circuit Court, Judicial Circuit, Conditional Order of Dismissal / with related documents (ten pages); and OMPF documents (92 pages). Additional documents 1, Tabs 1-6 (37 pages) and Additional documents 2, (31 pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant states in a document submitted with his application, he completed the fall semester 2012 at the University of Florida. He worked in a metal foundry poring steel for industrial pump casings: Townley Engineering and Manufacturing Cooperation, Belleview, FL. He completed his program in Building Construction (Commercial Construction) and received Bachelors of Science Degree. He has an AA Degree in Mathematics from Central Florida Community College, and an AS Degree in residential construction from Santa Fe College, FL. He is employed by Kast Construction, FL; as a supervisor. 7. REGULATORY CITATION(S): Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. Chapter 12 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, and convictions by civil authorities. 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. The narrative reason for enlisted Soldiers who are discharged under the provisions of Army Regulation 135-178, Chapter 12, paragraph 12 is misconduct. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable or uncharacterized and a change to the narrative reason for separation. 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 Reserve's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army Reserve, and was prejudicial to good order and discipline. By the pattern of misconduct, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable or a general 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 in the Reserve. The applicant requests a change to the narrative reason for separation. The narrative reason for enlisted Soldiers who are discharged under the provisions of Army Regulation 135-178, Chapter 12, paragraph 12-1b, is pattern of misconduct. The applicant seeks relief contending, he was not adequately notified of the separation proceeding, thus violating his due process rights; he was not allowed to participate in his separation process as authorized by AR 135-178; and his unit failed to contact him personally by a simple phone call notification. The record of evidence shows that he unit commander attempted to contact the applicant on several occasions and mailed the discharge packet to his last known address via certified mail. The applicant further contends, the charges against him for his alleged criminal misconduct were dropped by the Florida State Attorney's Office; he committed no crime, nor misconduct warranting separation. The record of evidence shows in a law enforcement document that on 14 October 2012, the applicant was observed entering a locked storage room that housed sensitive items. He tried several times to enter the storage room through the door but was unsuccessful and proceeded to enter through an unsecured window. He emerged from the building concealing something in a small black bag. The applicant was observed removing the black hooded mask and gloves, which he tucked under his shirt behind the back. He was confronted by Mr. L. and 1SG R., at which time the applicant confessed to having a M9 bayonet knife and a set of night vision goggles in his possession. During the-initial investigation after being detained, the applicant was read his Miranda rights by Officer G. F. After being advised of his rights, the applicant requested to have legal counsel present before answering any questions. At-that time he was placed under arrest and transported the Columbia County Detention Facility by Officer G. F., on the charges of burglary and grand theft. The applicant's charges of grand theft III and burglary of a structure were dismissed by the court. The conditional order of dismissal was contingent upon the applicant had to a $418 court cost and $100 cost of prosecution made payable to the Clerk of Courts no later than 5:00 p.m. on 10 February 2014. Upon applicant's payment of the foregoing amount, this cause shall be dismissed without further order of the Court. The State of Florida, dismissed all charges due to insufficient evidence to sustain a conviction. However, Army Regulation in effect at the time of discharge, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts Martial. The applicant requests expungement of the separation from his military records. The applicant's request 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. 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): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a Travel Panel hearing conducted at Warner Robins, GA on 27 February 2019, and by a 5-0 vote, the Board determined that the discharge was too harsh based on 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 of the characterization of service to uncharacterized and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Uncharacterized c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / RE-3 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 AR20180012475 4