1. Applicant's Name: a. Application Date: 2 September 2017 b. Date Received: 12 September 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant seeks relief contending, in effect, the discharge should be upgraded to honorable because the applicant was falsely accused of sexual assault. The applicant should have been allowed to ETS with an honorable discharge on 31 March 2017. The applicant was the victim of an elaborate false accusation of sexual assault and should not be stigmatized for it. The applicant was held past ETS for the purpose of a court martial and prosecuting the applicant for a false allegation of a crime; this action is generally prohibited. The applicant was not separated from the military within the five days, after the decision was made to dismiss the charge and its specification against the applicant in accordance with AR 635-200, paragraph 1-31c. The applicant was retained beyond the ETS date to process administrative separation proceedings; retention beyond a Soldier's ETS to process administrative separation proceedings pursuant to this regulation is not authorized. The exception to policy of 31 March 2017, was not signed by the appropriate authority and no delegation of authority is indicated on the memorandum. The memorandum of 31 March 2017, is defective and does not extend the applicant on active duty to process administrative separation proceedings. The applicant was not present for the board held due to the fact, the applicant was given an honorable discharge on 31 March 2017. The defense has seen no legal opinion from OTJAG stating that the 31 March 2017 memorandum is valid or that there was a valid delegation of authority to COL S., to extend the applicant. The applicant did not have legal counsel at the administrative separation board. An admitted false allegation should not be the basis for the separation of a Soldier. The status as a Soldier was not clarified by an OTJAG legal opinion, without a status as a Soldier, the applicant was not entitled to Trial Defense Services (TDS). Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder with anxiety and Major Depressive Disorder. The applicant is 100% service-connected; 70% for Major Depressive Disorder from the VA. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 1 November 2019, 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 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 10 August 2017 c. Separation Facts: No (1) Date of Notification of Intent to Separate: 31 August 2016 (2) Basis for Separation: NIF / However, the acting Staff Judge Advocate's memorandum exhibited the following timeline: On 7 August 2016, the applicant was alleged to have raped young woman, Ms. J.N., in Killeen, TX. This sexual assault was immediately reported the police by the victim. The victim was found hiding in the bushes outside the applicant's apartment in ripped clothes and bare feet. He was immediately arrested after being observed driving around his neighborhood with no identification. On 31 August 2016, applicant's battery commander initiated separation proceedings under paragraph 14-12c of Army Regulation (AR) 635-200, commission of a serious offense, based on the Bell County District Attorney's Office's representation that they would prosecute the case. On 14 September 2016, the Acting Commander, Ill Corps and Fort Hood, sent a written request to the Deputy Chief of Staff of the Army, G-1, to administratively retain the applicant beyond his ETS date of 3 October 2016, pursuant to paragraph 1-26 of AR 635 -200. This administrative extension was required because the applicant was alleged to have committed the sexual assault less than two months from his original ETS date and the Army did not anticipate gaining access to the supporting evidence within that time period. On 28 September 2016, the Bell County DA's Office declined criminal prosecution released jurisdiction to the Army. This declination was due to the victim's lack of cooperation in the civilian criminal process. On 29 SEP 16, the General Courts-Martial Convening Authority (GCMCA) retained the applicant beyond his 3 October 2016 ETS date for the purpose of pursuing prosecution under the UCMJ. The applicant's ETS date was extended to 1 April 2017, 180- days from 3 October 2016. This extension was executed by the GCMCA, pursuant to authority under paragraph 1-22 of AR 635-200. On 3 October 2016, the Deputy Chief of Staff of the Army, G-1, administratively retained the applicant until 1 April 2017, 180-days beyond his ETS date of 3 October 2016 , pursuant to his authority under paragraph 1-26, AR 635-200. On 5 October 2016, a rape charge was preferred against the applicant, and referred to a court-martial on 4 November 2016. The court-martial was docketed for trial on 28 March 2017. On 15 MAR 17, the GCMCA dismissed the rape charge without prejudice based on the victim's desire not to participate in the court-martial. The victim was represented by a Special Victim Counsel at the time of her declination on 9 March 2017. Simultaneously, on 15 March 2017, the GCMCA referred the applicant alleged serious offense to an administrative separation board (ASB) and signed a second request to the Deputy Chief of Staff of the Army, G-1, to have the applicant administratively retained beyond his ETS date of 1 April 2017, pursuant to paragraph 1-26 of AR 635-200. On 29 March 2017, the applicant was notified that his ASB would be held on 1 April 2017. Trial Defense Services (TDS) was also notified and was requested to detail a defense counsel for representation of the applicant at the board. On 31 March 2017, the applicant was extended for another 180 days until 1 October 2017, by COL D.F.S., Executive Officer to Deputy Chief of Staff of the Army, G-1. Although the applicant had already received his DD Form 214, because his ETS date fell on a Saturday, his discharge from the Army did not become effective until 1 April 2017. Furthermore, the applicant was not able to complete his final accounting of pay on 31 March 2017, one of the three prerequisites that must be completed prior to being formally discharged from the Army. Based on this second extension by the Army G-1, the applicant's chain of command repeatedly notified SPC Joseph that he must return to the unit. From 3 March 2017 to 18 April 2017, the applicant's chain of command continued to call, text, and email, send certified mail, and visit his last known address in Killeen. Additionally, the Trial Counsel recommended to the Senior Defense Counsel (SDC) that a defense counsel should be detailed to the applicant. However, the SDC refused to detail a defense counsel asserting that the applicant was already discharged from the Army and he had no legal authority to detail a uniformed defense counsel to a civilian. On 18 April 2017 an administrative separation board was convened in absentia. Neither the applicant nor TDS counsel elected to participate. The ASB substantiated the sexual assault and recommended that the applicant be separated from the Army with a characterization of service of under other than honorable conditions. The Ill Corps and Fort Hood IG's Office and Fort Hood TDS Office have both inquired with the Army G-1's Office regarding the validity of the applicant's ETS extensions and the Army G-1 has not reversed its extension actions on 3 October 2016 or 31 March 2017. The applicant's ETS date is still reflected as 1 October 2017. Lastly, the applicant's unsolicited act of voluntarily returning to the Army, after the conclusion of his separation board, and requesting and accepting his pay and other benefits, including the assistance of a TDS counsel, is an acknowledgment that the Army never lost personal jurisdiction over the applicant. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: 18 April 2017 (6) Separation Decision Date / Characterization: 24 July 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 January 2013 / 3 years, 22 weeks / 4 months extension 18 February 2016 / extension of service was at the request and for the convenience of the government. b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14T10, Patriot Operator / Maintainer / 4 years, 6 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait, 15 August 2014 to 23 August 2015 / Bahrain, 19 November 2015 to 15 June 2016 f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTEM-2; GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 22 February 2014, relates that the applicant was under investigation for making an unsafe turn, on post. i. Lost Time / Mode of Return: AWOL x2 for 35 days, 7 August 2016 to 9 August 2016 for 3 days, mode of return unknown; and 3 April 2017 to 4 May 2017 for 32 days, returned to unit. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Online application (six pages); two DD Forms 214; Brady disclosure document; e-mail traffic (six pages); memorandum, withdrawal and dismissal of court-martial charge. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. 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 complete facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct (serious offense), with a characterization of service of general (under honorable conditions). Barring evidence to the contrary, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of JKQ (i.e., misconduct (serious offense) with a reentry eligibility (RE) code of 3. The applicant seeks relief contending, his discharge should be upgraded to honorable because he was falsely accused of sexual assault; and he was the victim of an elaborate false accusation of sexual assault and should not be stigmatized for it. The record of evidence shows the applicant allegedly raped a young woman, Ms. J.N., in Killeen, TX. The sexual assault was immediately reported to the police by the victim. The victim was found hiding in the bushes outside the applicant's apartment in ripped clothes and bare feet. The applicant was immediately arrested after being observed driving around his neighborhood with no identification. The applicant further contends, he should have been allowed to reach his expiration of term of service (ETS) with an honorable discharge on 31 March 2017. On 31 March 2017, the applicant was extended for another 180 days until 1 October 2017. Although the applicant had already received his DD Form 214, because his ETS date fell on a Saturday, his discharge from the Army did not become effective until 1 April 2017. Furthermore, the applicant was not able to complete his final accounting of pay on 31 March 2017, one of the three prerequisites that must be completed prior to being formally discharged from the Army. The applicant also contends, he was held past ETS for the purpose of a court martial and prosecuting him for a false allegation of a crime; this action is generally prohibited; and he was retained beyond his extended ETS date to process administrative separation proceedings; retention beyond a Soldier's ETS to process administrative separation proceedings pursuant to this regulation is not authorized. In accordance with paragraph 1-26 of AR 635-200, the GCMCA of Ill Corps and Fort Hood requested that the Deputy Chief of Staff, Army G-1, administratively retain the applicant beyond his ETS date. Both requests were approved by the proper Army agency prior to the applicant's ETS. The applicant additionally contends, he was not separated from the military within the five days, after the decision was made to dismiss the charge and its specification against him in accordance with AR 635-200, paragraph 1-31c. On 15 March 2017, the GCMCA referred the applicant's alleged serious offense to an administrative separation board (ASB) and signed a second request to the Deputy Chief of Staff of the Army, G-1, to have the applicant administratively retained beyond his ETS date of 1 APR 17, pursuant to paragraph 1-26 of AR 635-200. Furthermore, the applicant contends, the exception to policy of 31 March 2017, was not signed by the appropriate authority and no delegation of authority is indicated on the memorandum; the memorandum of 31 March 2017, is defective and does not extend him on active duty to process administrative separation proceedings; and his defense has seen no legal opinion from OTJAG stating that the 31 March 2017 memorandum is valid or that there was a valid delegation of authority to COL S., to extend him. On 31 March 2017, the applicant was extended for another 180 days until 1 October 2017, by COL D.F.S., Executive Officer to the Deputy Chief of Staff of the Army, G-1. Both requests were approved by the proper Army agency prior to the applicant's ETS. Moreover, the applicant contends, he was not present for the board held due to the fact, he was given an honorable discharge on 31 March 2017; and he did not have legal counsel at the administrative separation board. On 18 April 2017, an administrative separation board was convened in absentia. Neither the applicant nor his TDS counsel elected to participate. Lastly, his status as a Soldier was not clarified by an OTJAG legal opinion, without a status as a Soldier, he was not entitled to Trial Defense Services (TDS). The applicant's unsolicited act of voluntarily returning to the Army, after the conclusion of his separation board, requesting and accepting his pay and other benefits, including the assistance of a TDS counsel, is an acknowledgment that the Army never lost personal jurisdiction over the applicant. If the applicant desires a personal appearance hearing, it is 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 was 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 1 November 2019, 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 AR20170016626 1