1. Applicant's Name: a. Application Date: 7 May 2019 b. Date Received: 7 May 2019 c. Previous Records Review: 26 September 2018, AR20170014694 d. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, an upgrade would show honorable service from 31 December 2003 to 8 September 2011. An upgrade would also enable the applicant to help the only daughter with educational expenses through veterans' benefits. In a telephonic personal appearance conducted at Arlington, VA on 7 December 2020, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, and post-service accomplishments, 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 general under honorable conditions. (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 / Under Other Than Honorable Conditions b. Date of Discharge: 28 August 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 March 2012 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to obey a general order and traveled to Mexico. The applicant was convicted civilly as a sex offender. The applicant drove his vehicle under the influence of alcohol on three separate occasions. The applicant failed to register as a convicted sex offender in Geary County. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 13 March 2012 (The conditional waiver to waive a hearing before an administrative separation board, contingent upon receiving no less than a general (under honorable conditions) discharge was disapproved on 14 June 2012.) (5) Administrative Separation Board: 24 July 2012 / Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 21 August 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 September 2011 / NIF; however, the commander's report memorandum indicates a term of 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19D10, Cavalry Scout and 91P10, Artillery Mechanic / 8 years, 7 months, 21 days d. Prior Service / Characterizations: RA (31 December 2003 to 6 March 2008) / HD RA (7 March 2008 to 8 September 2011) / HD e. Overseas Service / Combat Service: SWA / Iraq (22 January 2005 to 10 January 2006), (9 May 2007 to 15 August 2008), (8 October 2010 to 5 October 2011) f. Awards and Decorations: ARCOM-3; AGCM-2; NDSM; ICM-2CS; GWOTEM; GWOTSM; NCOPDR; ASR; OSR-3; CAB; MUC g. Performance Ratings: Two NCOERs rendered during period of service under current review: 1 October 2010 thru 30 September 2011, Fully Capable 30 September 2011 thru 11 July 2012, RFC, Marginal h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 2 July 2006, indicates the applicant was the subject of an investigation for driving under the influence, obstruction of justice, operating a motorcycle with the wrong class of license, and no headgear on while operating a motorcycle. Military Police Report, dated 21 October 2006, indicates the applicant was the subject of driving under the influence, driving on a suspended driver's license, defective equipment, failing to maintain lane, and giving false information to a police officer. Military Police Report, dated 22 November 2009, and civilian police report, dated 9 November 2009, indicate the applicant was the subject of an investigation for aggravated criminal sodomy. Military Police Report with a civilian police report, dated 14 March 2010, indicate the applicant was the subject of an investigation for driving under the influence of alcohol or drugs and driving with a revoked license. Military Police Report, dated 22 June 2010, indicates the applicant was the subject of an investigation for registration of convicted military sex offender Military Police Report with a civilian police report, dated 6 October 2011, indicate the applicant was the subject of an investigation for having two outstanding warrants for failing to register as an offender, and for failing to appear in court for a DUI. Military Police Report, dated 22 December 2011, indicates the applicant was the subject of an investigation for failing to obey a general order by traveling to Mexico. Negative counseling statements for being arrested in Kansas for driving without a valid driver's license; being arrested in Juarez, Mexico, an off-limits area for all US Armed Services personnel; failing to follow a standing order; inciting insubordination in a junior Soldier; failing to follow a direct order; and failing to be at his appointed place of duty at the prescribed time on numerous occasions. FG Article 15, dated 10 July 2012, for wrongfully using cocaine between 29 May 2012 and 1 June 2012. The punishment consisted of a reduction to E-4, forfeiture of $750 pay per month for two months, 45 days of extra duty and restriction, and an oral reprimand. Report of Proceedings by Board of Officers with summarized transcript of the board proceedings reports the findings and recommendations of the administrative separation that convened on 24 July 2012. i. Lost Time / Mode of Return: Seven days (NIF on 17 November 2009 to 23 November 2009) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 7 May 2019; DD Form 214; honorable discharge certificate; certificate of training; Texas Department of Public Safety letter, dated 27 July 2019; Western Technical College certificate, dated 26 October 2015. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence indicates the applicant completed the Advanced Welding Technology certification program. 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 under other than honorable conditions discharge to general (under honorable conditions). 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 incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. 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. In consideration of the applicant's service accomplishments and quality of his service, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends an upgrade would allow him to use his veterans' benefits and enabling him to help his daughter with educational expense. However, eligibility for veterans' 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 unit commander's notification memorandum, dated 8 May 2012, contained offenses the applicant committed in prior periods of service. Specifically, military police reports and counseling statements relating to offenses committed during periods of previous service. The government's presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct was not considered for the purpose of characterization. Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant's characterization of service. Notwithstanding information of previous misconduct contained in the record, 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): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. b. The applicant presented the following additional contention(s): c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a telephonic personal appearance conducted at Arlington, VA on 7 December 2020, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, and post- service accomplishments, 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 general under honorable conditions. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20190005738 4