1. Applicant's Name: a. Application Date: 19 May 2017 b. Date Received: 26 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, served the country, was a good Soldier, got injured and should receive fair benefits. The applicant contends is not guilty of an Article 120 offense. The applicant's Article 128 offensive touching resulted in no injury. The applicant did intentionally touch the ex-wife but did not aggressively or violently touch her. The applicant believes the ex- wife's misconduct shaded a bright light on her credibility. In addition to considering the fact that the ex-wife committed a crime that runs contrary to standards of honesty, integrity, and morals the day before being recommended for an under other than honorable conditions discharge. Please consider that the preliminary hearing officer (PHO) found that the ex-wife assaulted the applicant, despite her claim otherwise; a combative expert testified during the preliminary hearing that the story the ex-wife told military police was "physically impossible"; the military police officers who questioned the ex-wife said they were skeptical of her story; and the CID agent who testified at the preliminary hearing said the CID investigation was not thorough and was incomplete. The applicant contends honorable service for eight years, deploying to Iraq from 2009 to 2010 and then to Afghanistan from 2011 to 2012. During this time the applicant received two Good Conduct Medals. In a records review conducted at Arlington, VA on 26 October 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: 15 November 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 September 2016 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 1 September 2016, the applicant was charged with the following offenses: Committing an assault upon A.K., by strangling her, with a means likely to produce death or grievous bodily harm, to wit: placing his arm around her neck and squeezing on 10 February 2015; Committing a sexual act upon A.K., to wit: penetrated her vulva with his finger, when the accused knew or reasonably should have known that A.K., was asleep between 16 January 2016 and 18 January 2016; Committing a sexual act upon A.K., to wit: penetrated her vulva with his finger, when the accused knew or reasonably should have known that A.K. was asleep on 6 March 2016; and Committing a sexual contact upon A.K., to wit: touch her buttocks with his hand, by causing bodily harm to her, to wit: touching her buttocks without her consent on 7 March 2016. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 11 October 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 November 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 January 2016 / 5 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92Y2P, Unit Supply Specialist; 89B1P, Ammunition Specialist / 8 years, 10 months, 7 days d. Prior Service / Characterizations: RA, 9 January 2008 to 9 January 2010 / HD RA, 10 January 2010 to 6 August 2014 / HD RA, 7 August 2014 to 13 January 2016 / HD e. Overseas Service / Combat Service: SWA / Iraq (16 August 2009 to 26 July 2010) and Afghanistan (15 December 2011 to 15 October 2012) f. Awards and Decorations: ARCOM-3, AAM-3, MUC, AGCM-2, NDSM, ACM-CS, ICM- CS, GWOTSM, NOPDR, ASR, OSR, NATOMDL, g. Performance Ratings: None for the period of service under review (14 January 2016 to 15 November 2016). h. Disciplinary Action(s) / Evidentiary Record: CID Report dated 30 January 2014, shows the applicant was the subject of investigation for the wrongful possession of marijuana. FG Article 15, dated 6 May 2014, for wrongfully possessing marijuana on 25 January 2014. The punishment consisted of reduction to E-4 (suspended), forfeiture of $1,213 pay, and extra duty and restriction for 45 days. Military Police Report, dated 7 July 2015, shows the applicant was the subject of an investigation for assault consummated by a battery and domestic assault in the third degree. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; self-authored letter; separation packet; appointment memorandum; preliminary hearing officer's report; and bar to installation memorandum. 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 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his other than honorable conditions discharge to general (under honorable conditions). 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. 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents several acts of significant achievement and valor; however, it appears they did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant seeks relief contending that he served his country, was a good Soldier, got injured and should receive fair benefits. He contends he is not guilty of an Article 120 offense. His Article 128 offensive touching result in no injury. He did intentionally touch his ex-wife but did not touch her aggressively or violently. He believes his ex-wife's misconduct shaded a bright light on her credibility. In addition to considering the fact that his ex-wife committed a crime that runs contrary to standards of honesty, integrity, and morals the day before he was recommended for an under other than honorable conditions discharge. Please consider that the preliminary hearing officer (PHO) found that his ex-wife assaulted him, despite her claim otherwise; a combative expert testified during his preliminary hearing that the story his ex-wife told military police was "physically impossible"; the military police officers who questioned his ex-wife said there was skeptical of her story; and the CID agent who testified at his preliminary hearing said the CID investigation was not thorough and was incomplete. He contends he served honorable for eight years, deploying to Iraq from 2009 to 2010 and then to Afghanistan from 2011 to 2012. During this time he received two Good Conduct Medals The applicant's contentions were noted. 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 and the applicant is to be commended on his accomplishments. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was 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 evidence has been provided with the request for an upgrade of the discharge. The applicant contends he got injured and should receive fair benefits. 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. 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 26 October 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 AR20170010352 1