1. Applicant’s Name: a. Application Date: 5 May 2016 b. Date Received: 9 May 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general, under honorable conditions discharge to honorable and a change to the separation program designator (SPD) code. The applicant seeks relief contending, in effect, his discharge was inadequate and unjust because the incident that occurred on 3 April 2012, which he was cleared of, was brought back up in 2015 to discharge him. He was falsely accused of sexual assault that was later thrown out by both civilian and military authorities due to the alleged victim admitting to making false allegations. The applicant alleges the prosecutor, not being able to find enough to convict him and making it personal, used the 2012 incident as the basis of the discharge. The applicant states that he was informed that he had an Administrative Separation Board pending, which he alleges he lost due to the standard being so low at a lot of those boards. The applicant contends that during the investigation, the prosecuting military counsel harassed him, his neighbors, the victim, and his wife. The applicant further contends that he was a good Soldier, served his country, and led his Soldiers honorably in his six years of service. He would like to rejoin the Army to serve his country. His discharge has caused him to lose his educational benefits. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health conditions for the offenses. Mental Status Exam on 8 April was not indicative of any behavioral health diagnosis and the applicant was psychiatrically cleared for administrative separation In a records review conducted at Arlington, VA on 7 September 2016, 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 (Serious Offense) / AR 635-200c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 20 October 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date/Characterization: NIF / General, Under Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: NIF b. Age at Enlistment/Education/GT Score: 22 / HS Graduate / 111 c. Highest Grade Achieved/MOS/Total Service: E-5 / 13F20, Fire Support Specialist / 6 years, 2 months, and 11 days d. Prior Service/Characterizations: RA, 29 December 2009 - 28 December 2012 / HD (Note: End date of prior service is based on the applicant successfully completing his first term of service, as indicated on DD Form 214.) e. Overseas Service/Combat Service: SWA / Iraq (7 February 2011 – 16 December 2011) f. Awards and Decorations: ARCOM-2, AAAM-2, AGCM, NDSM, GWTSM, ICM-CS, NOPDR, ASR, OSR g. Performance Ratings: 1 February 2011 - 28 September 2014, Fully Capable 21 October 2014 – 20 October 2015, Marginal h. Disciplinary Action(s)/Evidentiary Record: CID Report of Investigation, dated 25 August 2010, reflects the applicant was the subject of an investigation for aggravated sexual assault of child – juvenile. It was determined that the assault did occur. DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 17 November 2010, reflects the applicant’s case for the aggravated sexual assault of child was disposed of as “cleared exceptional adult” through Lawton, Oklahoma on 9 April 2010. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 5 May 2016, self-authored statement; DD Form 214; and six character statements. 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 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, 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 general, under honorable conditions discharge to honorable and a change to the separation code. The applicant’s available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the 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 the false sexual assault allegations, the prosecutor’s personal vendetta, the harassment, and the outcome of the Administrative Separation Board were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The applicant contends that he was a good Soldier, with six years of honorable service, which included a deployment to Iraq. 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 would like to rejoin the Army. However, the SPD code of "JKQ" is the appropriate code to assign enlisted Soldiers who are discharged for Misconduct (Serious Offense). The regulation further stipulates that no deviation is authorized. Further, a Soldier assigned an SPD Code of "JKQ" will be 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 reenlistment 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 of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, 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. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. Based on the available record, the discharge appears consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 7 September 2016, 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: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable 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 OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police PTSD - Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 VA - Veterans Affair ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160009499 4