1. Applicant's Name: a. Application Date: 8 June 2016 b. Date Received: 20 June 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 and change his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that he would like an upgrade of his discharge for the purpose of being able to join the Army National Guard and receive his GI Bill benefits. The applicant also requested he be given his rank of E-4/SPC back. The applicant contend he was convicted of two felonies in 2013 and was discharged. His case was brought up to the Kentucky Supreme Court in October 2015 and his conviction was vacated. Because of the vacation he no longer has a felony conviction and he has been released from the Kentucky Department of Corrections. In a records review conducted at Arlington, VA on 30 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: Misconduct (Civil Conviction) / AR 635-200 / Chapter 14-5, Section II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 30 October 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 May 2014 (2) Basis for Separation: The applicant was informed of the following reasons: being tried and convicted before a jury which returned the verdict of: Guilty on one count of Sexual Assault, 1st Degree, Victim under 12 years of age; and Guilty on one count of Sodomy, 1st Degree, Victim under 12 years of age. The applicant was sentenced to: 5 years on Sexual Abuse, 1st Degree, Victim under 12 years of age, 1 count and 20 years on Sodomy, 1st Degree, Victim under 12 years of age, 1 count. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 May 2014 (5) Administrative Separation Board: On 23 September 2014, the board convened and determined that a preponderance of the evident establish that the applicant was convicted and sentence by a civil court, that the finding warranted separation, and recommended that the applicant be separated from the US Army with an under other than honorable conditions discharge. (6) Separation Decision Date / Characterization: 24 October 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 October 2012 / 4 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F1P, Petroleum Supply Specialist / 8 years, 9 months, 8 days d. Prior Service / Characterizations: RA, 29 September 2004 to 3 April 2007 / HD RA, 4 April 2007 to 6 April 2011 / HD RA, 7 April 2011 to 15 October 2012 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (9 August 2006 to 10 November 2007) f. Awards and Decorations: ARCOM, AAM, MUC, AGCM-2, ICM-2CS, NDSM, GWOTSM, HSM, ASR-2, OSR-2, CAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CID Report, dated 5 February 2013, which shows the applicant was the subject of investigation for sexual abuse in the 1st degree and sodomy in the 1st degree. Judgement and Sentence on Plea of Not Guilty from the Commonwealth of Kentucky Christian Circuit Court, dated 11 February 2014, makes reference to the applicant being found guilty on one count of Sexual Assault, 1st Degree, Victim under 12 years of age; and guilty on one count of Sodomy, 1st Degree, Victim under 12 years of age. Report of Mental Status Evaluation, dated 26 August 2014, show the applicant was cleared for any administrative action deemed appropriated by his command. Counseling statement reference indictment by Commonwealth of Kentucky Christian County Grand Jury; conditions of release from Christian County Jail while pending civilian prosecution; and military protection order. Also counseling for failure to be at his appointed place of duty. i. Lost Time / Mode of Return: Confinement civilian authorities 114 days (27 November 2012 to 19 March 2013) and 365 days (30 October 2013 to 30 October 2014). j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and documents from his court case. Court documents submitted by the applicant shows that his conviction was vacated. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with his application. 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. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (civil conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" 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 change his reentry eligibility (RE) code. 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 appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for misconduct (civil conviction) is "JKB" and the RE code is 3. The regulation further stipulates that no deviation is authorized. The applicant contends his discharge should be upgraded based on he was convicted of two felonies in 2013 and was discharged. His case was brought up to the Kentucky Supreme Court in October 2015 and his conviction was vacated. Because of the vacation he no longer has a felony conviction and he has been released from the Kentucky Department of Corrections. The applicant's contentions were noted; however, the evidence shows the applicant was found guilty on one count of Sexual Assault, 1st Degree, victim under 12 years of age and guilty on one count of Sodomy, 1st Degree, victim under 12 years of age. Documents submitted by the applicant show that because of flawed jury instructions and a duplicitous indictment violated his right to a unanimous verdict and the Commonwealth improperly elicited testimony from a police officer which impermissibly bolstered the credibility of the victim the judgment was vacated and remanded for a new trial. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. Furthermore, 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. The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to join the Army National Guard and receive his GI Bill benefits. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If enlistment in the Army National Guard 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 at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. Also 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 applicant also requested he be given his rank of E-4/SPC back. 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 30 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160011499 3