1. Applicant's Name: a. Application Date: 6 August 2016 b. Date Received: 12 August 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge and its corresponding codes based on propriety and equity. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant served honorably and without incident, until the accusations and subsequent preferral of charges concerning sexual misconduct on 20 March 2014, although there were questions as to the veracity of Private First Class C.L.B.'s claims. The applicant had explained that while he and PFC B. were friends prior to his promotion to Sergeant, PFC B. had invited him to her room to borrow a movie. At that time, they laid down in bed, fully clothed but he did not make any sexual contact with PFC B, although he may have grazed her when he pushed her away when she gyrated her hips against him. Several months after his promotion, he was assigned to check each Soldiers' gear during a JRTC training rotation, including PFC B.'s. In doing so, he adjusted the gear by pulling the straps near the shoulders. However, the following day, he was interrogated for alleged sexual contacts, and throughout that process, he maintained his innocence and denied making any sexual contact with PFC B. When he admitted that there was a chance he could have grazed her when he was pushing her away, he was charged with making a false official statement. His consultation with a legal counsel, informed him that due to a current political climate regarding sexual offenses, it was likely he would be found guilty in a court-martial. He did not want to risk a conviction, he requested a discharge in lieu of trial by court-martial. Except for the contested claims of misconduct, his military service was impeccable and honorable. (The counsel detailed the applicant's in-service and post-service accomplishments.) Since his discharge, he has proven to be a trusted member of his community and of high moral character. His character reference statements attest to his true character, self-less service, attitude, professionalism, and distinguished service. His current discharge is wholly unjust because of his strong character, and his military and post-service accomplishments, and the accusations of PFC B. defy logic as two witnesses have stated that she fabricated the allegations. In a records review conducted at Arlington, VA on 5 September 2018, 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: 3 October 2014 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 20 March 2014, the following charges were preferred, and referred to trial by a general court-martial on 2 July 2014: Charge I: two specifications of violating Article 120, UCMJ, for committing sexual contact on a female Soldier, Private First Class (PFC) C.L.B. on 14 and 28 February 2013, by touching her breast, buttock, and leg with his hand without her consent, and committing sexual contact on a female Soldier, PFC C.L.B. on 15 August 2013, by touching her breast with his hand without her consent. Charge II: Violation of Article 93, UCMJ, for maltreating a female Soldier, PFC C.L.B. on 15 August 2013, a person subject to his orders, by making repeated offensive comments and gestures of a romantic and sexual nature. Charge III: Violation of Article 107, UCMJ, for making a false statement to a special agent, with the intent to deceive on 16 August 2013. Charge IV: Violation of Article 128, UCMJ, for unlawfully touching a female Soldier, PFC C.L.B. on her hand with his hand on 15 August 2013, and on diverse occasions. (2) Legal Consultation Date: 3 September 2014 (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: 24 September 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 July 2009 / 5 years (pursuant to the preferral of court- martial charges, the applicant's enlistment was administratively extended) b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B1P, Military Police / 5 years, 2 months, 20 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (14 June 2012 to 24 September 2012) f. Awards and Decorations: AAM; AGCM; ACM-2CS; GWOTSM; ASR; NATO MDL; CAB g. Performance Ratings: (NCOER) 1 March 2013 thru 28 February 2014, Fully Capable (Service School Academic Evaluation Report) 20 March 2013 thru 18 April 2013, shows he exceeded the course standards of the Warrior Leadership Course (WLC). h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 6 August 2016; attorney-authored brief; DD Form 214; separation file; applicant-authored statement; six character reference and support statements; resume; and ERB. 6. POST SERVICE ACCOMPLISHMENTS: The counsel's brief states, in effect, that immediately after the applicant's discharge, he was employed with the Home Depot, UHAUL Moving and Storage, North American Law and Landscape, and he is currently a security officer, promoted to site supervisor with Allied Barton in New York, since December 2015. 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. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge and its corresponding codes based on propriety and equity. The applicant's available record of service, and 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. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's contentions about not wanting to risk a conviction, he requested a discharge in lieu of trial by court-martial, specifically due to his consultation with a legal counsel, who informed him that due to a current political climate regarding sexual offenses, it was likely he would be found guilty in a court-martial, and that the accusations of the Soldier (accuser) defied logic as two witnesses having stated that she fabricated the allegations, were carefully considered; thereby, his discharge was wholly unjust. However, 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The third party statements provided with the application speak highly of the applicant's performance and character, and also some provide recognitions of his good conduct after leaving 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. Regarding the applicant's request to change the reason for his separation and its corresponding codes, the narrative reason for his separation, however, is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, 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 and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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 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 5 September 2018, 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 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 AR20160014710 1