1. Applicant's Name: a. Application Date: 24 October 2016 b. Date Received: 3 November 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 and a narrative reason change. The applicant seeks relief contending, in effect, LTC R and her subordinates committed a prejudicial error and misrepresented the recommendations of the chain of command to the commanding general when she recommended an other than honorable discharge. The applicant's discharge must be upgraded to honorable because the defense counsel's performance was deficient, such that the applicant did not receive counsel and failed his duty to make reasonable investigations; and, as a result, the applicant did not benefit from counsel. Therefore, the defense counsel's failure to maintain standards, undercut the presumption that defense counsel fulfilled his role in the pre-trial proceedings as guaranteed by the sixth amendment. Additionally, the applicant's counsel failed to effectively advocate for his client upon submitting the request for discharge in lieu of court-martial. The Army paralegal, SFC C, unethically engaged in the practice of law and the applicant's defense counsel failed his duty to properly supervise her and they both failed to ensure that the commanders' recommendations were considered by the General Court-Martial Convening Authority (GCMCA). Finally, the characterization of the applicant's discharge is counter to the overall quality of his service. Per the Board's Medical Officer, based on the information available for review at the time, the offense of being drunk and disorderly is mitigated by his PTSD. As PTSD is associated with use of alcohol and drugs to self-medicate symptoms, there is a nexus between the applicant's PTSD and the offense of being drunk and disorderly. PTSD does not mitigate the offenses of violating a general order for wrongfully engaging in a sexual relationship; maltreating a PFC W on numerous occasions by sexually harassing her and propositioning her for sex; unlawfully grabbing PFC W on two occasions; communicating an indecent text message to PFC W; wrongfully endeavoring to alter a sworn statement. JLV indicates applicant has been found 60 percent service connected (not clear for what he is service connected). In a personal appearance hearing conducted at Arlington, VA on 24 July 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: 6 July 2015 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 6 February 2015, the applicant was charged with: One specification of violating Article 92, UCMJ, for violating a lawful general order (between 1 February and 1 December 2013), for wrongfully engaging in a sexual relationship with PFC W. One specification of violating Article 93, UCMJ, for maltreating PFC W on divers occasions between 24 December 2013 and 14 June 2014, by sexually harassing her and propositioning her for sex on multiple occasions. Two specifications of violating Article 128, UCMJ, for unlawfully grabbing PFC W, on two separate occasions between 1 April and 15 June 2014. Three specifications of violating Article 134, UCMJ, for drunk and disorderly conduct on 15 June 2014; communicating an indecent text message to PFC W, on 12 June 2014; and, wrongfully endeavor to alter the sworn statement of PFC W, by giving PFC W a false statement meant to influence her to provide a false sworn statement (20 June 2014). (2) Legal Consultation Date: 23 April 2015 (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 / Note: Memorandum, dated 20 March 2015, from the Acting Staff Judge Advocate to the GCMA, reflects that the Company, Battalion and Brigade Commanders', recommended an Under Other Than Honorable Conditions, however, the recommendations are not included in the applicant's service record. (5) Separation Decision Date/Characterization: 1 May 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 June 2012 / 3 years b. Age at Enlistment / Education / GT Score: 39 / 2 years college / 94 c. Highest Grade Achieved / MOS / Total Service: E-7 / 35M40, Human Intelligence Collector / 13 years, 10 months, 23 days d. Prior Service / Characterizations: RA, 24 August 2001 - 23 August 2004 / HD USAR, 24 August 2004 - 18 March 2005 / NA e. Overseas Service / Combat Service: SWA / Iraq (28 March 2003 -19 March 2004) f. Awards and Decorations: ARCOM-2, AAM, ASUA, AGCM-4, NDSM, GWOTEM, GWOTSM, NCOPDR, ASR g. Performance Ratings: 16 July 2012 - 15 July 2013, Among The Best 16 July 2013 - 15 July 2014, Marginal 16 July 2014 - 15 July 2015, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. The applicant's case separation file is void from the applicant's service record. The applicant submitted with his application several documents from his case separation file. Included in those documents were: Court-Martial Transmittal Form, which reflects the applicant's Company, Battalion, and Brigade commander, all recommended that the applicant go before a "BCD Special Court- Martial." AR 15-6 Investigation, Findings and Recommendations, dated 15 September 2014, found: The applicant did carry on a relationship with one or more lower-enlisted female TPU Soldiers; The incident that occurred on the night of 14 June and leading into the morning of 15 June 2014, was a verifiable fact. The investigating officer recommended that the applicant receive a letter of reprimand for violation of a direct order; and, that the applicant be relieved from his duties as the SHARP trainer and be transferred outside of the command. Memorandum, dated 20 March 2015, from the Acting Staff Judge Advocate to the GCMA, reflects that the Company, Battalion and Brigade Commanders', recommended an Under Other Than Honorable Conditions discharge, however, the recommendations are not included in the applicant's service record. Memorandum, dated 21 May 2015, from the applicant's defense counsel to the GCMCA, to reconsider the approved characterization of service of the applicant. In pertinent part, the defense counsel states that LTC B, the applicant's first sergeant and company commander as well as others in the military community support the request to grant the applicant a general (under honorable conditions) discharge. Memorandum, dated 12 June 2015, reflects the SCMCA disapproved the request for reconsideration regarding the characterization of service in reference to the applicant's discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a letter from the Vet Center, dated 6 June 2017, which reflects the applicant was treated for Major Depressive Disorder and PTSD, from October 2016 and May 2017. 5. APPLICANT-PROVIDED EVIDENCE: Online application, with all allied documents listed in the supporting documentation information section of the application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states that he has obtained employment and completed a professional certification; and, achieved honor on the Dean's List while pursuing his Bachelor's degree. 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. 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason change. 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 the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 10, AR 635-200, with a 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 was under duress when he signed his request for discharge in lieu of trial by court-martial; and, therefore, his request was not voluntary. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before requesting a discharge in lieu of trial by court-martial. In the applicant's request for discharge, he acknowledged that he was not coerced and that his request was made on his own accord. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant contends that he did not have adequate counsel during the pre-trial proceedings. 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 character of the applicant's discharge is commensurate with his overall service record. Further, the applicant had the option of requesting new counsel, if he had concerns regarding his representation. The applicant contends that the recommendations of the subordinate commanders' were not accurately presented to the SCMCA for his consideration. However, the applicant's request for discharge clearly stated that his request, if approved, could result in a characterization of service of under other than honorable conditions and a reduction to E-1. Additionaly, the applicant's case separation file is void of the service record and the only documents available for review were provided by the applicant. The documents did not include the recommendations from his commanders. Further, the documents reflect his commanders recommended that he appear before a Special Court-Martial, which was empowered to sentence a Bad Conduct Discharge. Finally, the SCMCA, considered and disapproved his defense counsel's request for reconsideration. Therefore, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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 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 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Character reference letters from April and May 2015 - 6 pages ARCOM Certificates - 2 pages b. The applicant presented no additional contention(s): c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 24 July 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20160017322 6