1. Applicant's Name: a. Application Date: 24 January 2016 b. Date Received: 18 February 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable, a narrative reason change and an RE code change. The applicant seeks relief contending, in effect, he was a proud member of the United States Army, who served with distinction, both at home and overseas. However, the United States Army failed the applicant when it allowed this matter to be recommended for court-martial despite the rampant errors in how the pre-trial investigation was conducted. The applicant felt pressured to avoid the trial given the bias he clearly faced during the investigation and so believed he had no other choice. Once the totality of the circumstances is examined it becomes clear the applicant was a victim of the very system established to ensure that the interest of justice is served. Since his separation, the applicant has experienced significant accomplishments. He has become trained and certified in air conditioning technology and was invited to join the Phi Theta Kappa national honor society. The applicant was additionally invited to become a member of the Honors Program at San Jacinto College. The applicant has also been an asset to his community by volunteering to assist a disabled individual with grocery shopping and attending church. In a records review conducted at Arlington, VA on 7 June 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: 17 August 2011 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: 5 July 2011 (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. The applicant's service record is void of the applicant's request for discharge in lieu of trial by court-martial, however, the applicant provided a letter, dated 5 July 2011, from his defense counsel to the Special Court-Martial Convening Authority (SCMCA) requesting that the SCMCA accept the applicant's request for discharge in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 4 August 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 April 2008 / 3 years, 16 weeks / Note: The applicant was retained in service 19 days for the convenience of the government. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 4 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: GWOTSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation-Final, dated 3 May 2011, reflects an investigation determined the applicant committed the offense of rape and committed the offense of assault. Special Court-Martial Order Number 26, dated 7 September 2011, reflects the following charges were dismissed under the provisions of Chapter 10, Army Regulation 635-200: Charge I: Five specifications of violation of Article 12, UCMJ, for causing Ms. X to engage in sexual acts, by using strength, sufficient that she could not avoid or escape the sexual contact; causing bodily harm; and, committing an indecent act (between 15 and 18 April 2010). Charge II: Four specifications of violation of Article 128, UCMJ, for unlawfully grabbing, placing his hand on and biting Ms. X while masturbating (between 15 and 18 April 2010). 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: Became trained and certified in air conditioning technology; invited to join the Phi Theta Kappa national honor society; invited to become a member of the Honors Program at San Jacinto College; volunteers to assist a disabled individual with grocery shopping and attending church. 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. 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 "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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable, a narrative reason change and an RE code change. The applicant's available 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 separation. Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge. Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment. The applicant contends the narrative reason for the discharge should be changed because the investigation which led to charges being prefferred against him was flawed. The applicant provided two statements in support of his contention. However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial By Court-Martial," and the separation code is "KFS." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends that he had good service. 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 Army Discharge Review Board is authorized to consider post-service factors in the 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 applicant desires to rejoin the Military Service. 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 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The third party statement provided with the application spoke highly of the applicant's performance. The author recognized his good conduct after leaving the Army; however, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, the statement did not 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 7 June 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 AR20160004547 4