1. Applicant's Name: a. Application Date: 18 July 2017 b. Date Received: 6 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, was falsely accused of violating punitive articles of the UCMJ. The applicant believes the charges were not adequately or thoroughly investigated. The applicant was not adequately represented by counsel that had the applicant's best interest at heart. In a personal appearance hearing conducted at Arlington, VA on 26 August 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: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 30 June 2016 c. Separation Facts: No (1) Date Charges Were Preferred: NIF (2) Basis for Separation: The evidence of record does not contain a DD Form 458, Charge Sheet and government regularity is presumed in the discharge process. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 April 2015 / 3 years / 4 months extension 20 May 2015 b. Age at Enlistment / Education / GT Score: 25 years / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-5 / 88M10, Motor Transport Operator / 9 years, 8 months, 29 days d. Prior Service / Characterizations: ARNG, 8 August 2006 to 4 July 2007 / NA IADT, 5 July 2007 to 7 December 2007 / HD ARNG, 8 December 2007 to 1 October 2009 / NA ADT, 2 October 2009 to 18 November 2009/ /HD ARNG, 19 November 2009 to 4 February 2010 / NA AD, 5 February 2010 to 25 February 2011 / HD ARNG, 26 February 2011 to 7 December 2011 / NA AD, 8 December 2011 to 15 December 2012 / HD ARNG, 16 December 2012 to 4 March 2013 / HD RA, 5 March 2013 to 30 March 2015 / HD e. Overseas Service / Combat Service: Germany / SWA / Iraq, 6 March 2010 to 15 January 2011 / Afghanistan x2, 9 January 2012 to 13 October 2012 and 7 January 2014 to 20 September 2014 f. Awards and Decorations: ARCOM-2, AAM-3, AGCM, ARCAM-2, NDSM, ACM-2CS, ICM-2CS, GWOTSM, MOVSM, NOPDR-2, ASR, OSR-4, AFRM-"M" DEV, NATO MDL, CAB g. Performance Ratings: 8 July 2015 to 7 July 2016, Did Not Meet Standard h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 12 May 2014, for being derelict in the performance of his duties in that he negligently failed to secure his PVS-14 night vision goggles as it was his duty to do (13 February 2014); with intent to deceive, made to CW2 L., an official statement "I arrived late and did not see the Soldiers I was sent to pick up" or words to that effect, which statement was totally false and was then known by him to be so false (9 February 2014); and having knowledge of a lawful order issued by SFC S.R., to "Go to the rotary wing pax terminal and pick up three Soldiers" or words to that effect, an order which it was his duty to obey, did fail to the obey the same (9 February 2014); forfeiture of $1,277 pay (suspended), extra duty for 30 days and an oral reprimand. Military protective order dated, 28 January 2016, relates the applicant was issued a Military Protective Order, for an abusive sexual contact investigation. Law Enforcement Reports, dated 15 July 2016 and 27 July 2016, revealed that the applicant was under investigation for stalking, communicating a threat, failure to obey a General Order and abusive sexual contact (adult), respectively. The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: Pre-trail confinement for 53 days, 30 April 2016 to 23 June 2016 j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); DD Form 214 (two pages); memorandum, request for Georgia Special Operations Ribbon; nine support / character statements; three AAM Certificates; memorandum, request for ARCAM; memorandum, award of ACM; driver's badge Orders 103-015; MOVSM Certificate; memorandum, award of OSR-2; NDSM orders 005-335; Air Assault Course Diploma; and a NATO MDL Certificate. 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 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 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 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. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of in lieu of trial by court-martial, with a characterization of service of under other than 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 KFS (i.e., in lieu of trial by court-martial), with a reentry eligibility (RE) code of 4. The applicant seeks relief contending, he was falsely accused of violating punitive articles of the UCMJ; and he believes the charges were not adequately or thoroughly investigated. In a legal opine dated 14 April 2016 CPT L., opined that there was probable cause to find the applicant committed the offense of abusive sexual contact, sexual harassment and fraternization. No additional investigative efforts were required. The report was to be provided to the commander for consideration and action. The applicant further contends, he believes he was not adequately represented by counsel that had his best interest at heart. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the available record, nor has the applicant produced any evidence to support the contention that he was not adequately represented by counsel. It is the applicant's 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. 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): None b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 26 August 2019, 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 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 AR20170017019 4