1. Applicant's Name: a. Application Date: 18 May 2016 b. Date Received: 23 May 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, he was discharged in lieu of court-martial due to allegations of wrongful sexual contact of a female civilian. The woman that made the allegations against him had been drinking and was attempting to leave his home. The woman had been arguing with her boyfriend and refused to listen to the applicant's appeal not to drive. Eventually, the applicant pulled the woman from her vehicle and placed the keys in his pocket. The woman then spent the night asleep in the applicant's bathroom. The next day the woman informed her boyfriend that she was embarrassed and disrespected by the way the applicant placed his hands on her and removed her from her vehicle. Later, the woman made the allegations against the applicant that served as the basis for his discharge. The applicant states that nothing was ever proven and nothing ever came of the allegations, but he missed deploying, lost the respect others, lost an assignment, lost the opportunity to retire from the service and was discharged in a disgraceful manner. He understands how his actions were perceived and how the Army has a strict zero tolerance rule against such behaviors. He requested the discharge after he was repeatedly told that it was the best option for his situation. He believes his discharge does not reflect his character or everything that he had done during his service. He believes his service should not be over shadowed by a bad situation. He states he served honorably every day without regard and was selfless at all costs. He loved the Army and he comes from a long line of service members in his family. He provides letters of accommodation to support his character, but he mostly wants a fair chance at redeeming himself. He desires to look back at his service and not have it tarnished by an incident in which he did not have a real chance at overcoming. He is fully aware of the rules and regulations of the UCMJ and he knows that these type of actions, when proved to be true, impact the image of Soldiers and the military. He knows what his intentions were that night and he now knows how he could have avoided this life changing incident. He has paid the ultimate punishment and he cannot regain everything that he lost, but he requests that the one thing that can be changed, be amended in order to reflect his time as a Soldier. He has never been in trouble of any type prior to the incident and he continues to be a good citizen to this day. He regrets requesting the discharge because he feared the outcome of a trial. He is a father of four children and a brother to service members that all know that his character is honorable. He still lives and teaches the Army values to his own children and desires nothing more, then to have an honorable discharge that he and many others believe he deserves. He pleads for the Board's understanding on this matter and to give him the benefit of doubt when reviewing his military service. In a records review conducted at Arlington, VA on 4 August 2017, 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: In Lieu of Trial by Court-Martial / AR 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 7 September 2012 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 28 March 2012, the applicant was charged with: Charge I: Four specifications of violating Article 120, UCMJ, for: On divers occasions, wrongfully engage in sexual contacts with Ms. X, without her permission (14 May 2011); Intentionally engaged in sexual contacts with Ms. X, who was substantially incapable of declining participating or communicating unwillingness to engage in sexual acts (14 May 2011); Wrongfully engage in sexual contacts with Ms. X, without her permission (14 May 2011); and, Wrongfully engage in sexual contacts with Ms. X, without her permission (between 1 and 31 July 2011). Charge II: Violation of Article 128, UCMJ, for unlawfully rub Ms.X on the back with his hand (between 1 and 31 July 2011). (2) Legal Consultation Date: 2 July 2012 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 9 July 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 May 2011 / 4 years b. Age at Enlistment / Education / GT Score: 27 / 1 year college / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources / 4 years, 7 months, 2 days d. Prior Service / Characterizations: RA, 10 September 2008 - 3 May 2011 / HD e. Overseas Service / Combat Service: SWA / Iraq (27 August 2009 - 6 August 2010) f. Awards and Decorations: ARCOM, AAM-4, MUC, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. CID Report of Investigation, dated 26 July 2011, reflects the investigation established probable cause to believe the applicant committed the offense of Wrongful Sexual Contact when in a vehicle on the way back from a night club and fondled Mrs. X, despite her objections. The applicant also attempted to fondle Mrs. R while she slept at the applicant's residence (14 May 2011). Investigating Officer's Report, dated 30 April 2012, reflects reasonable grounds existed to believe the applicant committed the offenses alleged. The investigating officer recommended a General Court-Martial due to the maximum punishment that could be imposed for wrongful sexual contact and abusive contact were outside the jurisdictional limitations of any other court- martial. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general (under honorable conditions) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable conditions. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. Further, the applicant voluntarily requested a discharge in lieu of trial by court-martial. In doing so, the applicant acknowledged that he understood the elements of the offense charged and was guilty of one or more of the charges against him or of a lesser included offense therein contained that also authorizes the imposition of a bad conduct or dishonorable discharge. The applicant contends that nothing ever came of the charges against or in effect, were dismissed before he left the Army. However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen. In this case, the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635- 200, in lieu of trial by court-martial and the convening authority approved that request The applicant contends his discharge should be upgraded because he wants to look back at his service and have it reflect the honorable service which he believes it to have been. However, the issue the applicant submitted 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 third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct and professionalism in the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity 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 4 August 2017, 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 f. Restore (Restoration of) Grade 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 AR20160009937 5