1. Applicant's Name: a. Application Date: 8 November 2017 b. Date Received: 14 November 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, was falsely accused of a SHARP related incident. The applicant was also given bad advice from a military lawyer, where the lawyer discouraged the applicant from going to trial and told the applicant that the lawyer did not believe that the evidence against the applicant was strong enough to hold up at trial. The applicant's lawyer told the applicant about accepting a chapter 10 discharge, when the applicant had asked the lawyer, if the applicant should take the case to trial. The applicant was also told that the applicant would not have a chance of winning the case, because the applicant is a male and males basically have no rights in a court for SHARP related cases. The court would always side with a female before they listen to a male. The applicant was moved to another unit while the case was ongoing. In the new unit, NCOs counseled the applicant stating Soldiers in this situation would come to a unit, and bring the morale down, slack, be disrespectful and not do their job, but they acknowledged that the applicant was never that kind of Soldier. The applicant would always be in the right uniform at the right time at the right place. The applicant tried getting advice about the situation from the old unit, but no one would help, so turned to the new unit who gave some advice. The applicant believes that the old unit abandoned the applicant when the applicant needed help and advice. They moved the applicant to a new barracks room, where the applicant did not feel safe because everyone in the barracks knew the accuser and would talk all around the base. The applicant asked the former unit to move the applicant, but after this request was denied, the applicant opted to sleep in a truck. In a records review conducted at Arlington, VA on 24 January 2020, 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: 10 April 2017 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: NIF (3) Basis for Separation: NIF (4) Recommended Characterization: NIF (5) Separation Decision Date/Characterization: 23 March 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 September 2015 / 3 years, 27 weeks b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 91B10, Wheeled Vehicle Mechanic / 1 years, 6 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report - Final, dated 23 January 2017, reflects on 4 October 2016, Special Agent [redacted] was notified by CPT[redacted] Commander, B Company, 62nd Expeditionary Signal Battalion, 11 Signal Brigade, who stated PFC [redacted] and PV2 [redacted] both reported the applicant put his hand down their pants. PFC [redacted] stated on 1 October 2016, while at her off post residence she fell asleep on the sofa in the living room. PFC [redacted] stated when she awoke, she discovered the applicant was lying beside her, with his hand on her genitals, over her pants. PV2 [redacted] stated in August 2016, while watching a movie in the applicant's barracks room, she fell asleep on the bed. PV2 [redacted] stated when she woke up, the applicant was laying behind her and unbuttoning her jeans. PV2 [redacted] stated the applicant did not touch her in a sexual manner, but stated she felt his penis, through his pants, on her thigh. The applicant was advised of his legal rights, which he invoked and requested legal counsel. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Three DA Forms 4856; DD Form 293. 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 under other than honorable conditions discharge to honorable conditions. 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. The applicant's record is void of the specific 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 signature. 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, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The separation authority's decision memorandum was in the applicant's record and confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant would have, 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 would have admitted guilt to the offense, or a lesser included offense, and he would have 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 would have been met and the rights of the applicant would have been 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 he received bad advice from his counsel and no help from his unit. However, 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. The applicant's contentions about his discharge was a form of punishment was 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 had good service. 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. 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 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 24 January 2020, 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 AR20180000169 1