1. Applicant's Name: a. Application Date: 30 November 2017 b. Date Received: 13 December 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, that the discharge was inequitable because it was based on one isolated incident in 29 months of service with no other adverse action. The discharge was completed prior to the civilian court's ruling on the case, which ultimately ruled that the judgment of conviction was set aside; and the information and/or indictment was dismissed. The judge's ruling was not taken into consideration even after multiple NCOs in attendance reported the information back to the command. Many character references have spoken on the applicant's behalf and service. The applicant was not granted availability of all outcomes. Since discharge, the applicant has carried the discipline and leadership learned and applied them to all the positions the applicant attained. However, a change, by an upgrade of current discharge would enable the applicant to achieve more. In a records review conducted at Arlington, VA on 9 October 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 / General (Under Honorable Conditions) b. Date of Discharge: 26 October 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 September 2006 (2) Basis for Separation: The applicant was informed of the following reasons: On 30 May 2006, the applicant was charged with attempting to commit public sexual indecency by intentionally or knowingly attempting to engage in an act of sexual intercourse when a person under the age of 15 was present, a class 6 undesignated felony. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 September 2006 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 October 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 June 2004 / 4 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 93 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25L10, Cable Systems Installer/Maintainer / 2 years, 4 months, 19 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM; NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Mental Status Evaluation, dated 24 August 2006, provided no diagnosis, but cleared the applicant for any administrative action deemed appropriated by his command. Civilian court Plea Agreement with its associated documents, dated 1 September, stipulated the dispositions of the case in exchange for the applicant agreeing to plead guilty to the Count I charge for attempting to commit public sexual indecency by intentionally or knowingly attempting to engage in an act of sexual intercourse when a person under 15 years of age, was present and the applicant was reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 30 November 2017; civilian court Order Regarding Motion to Set Aside Judgment of Convicted Person, dated 8 January 2008; applicant's response to administrative separation action, dated 27 September 2006; three character reference/supporting statements; applicant's parents' statements; Service School Academic Evaluation Report, dated 28 July 2006; AAM certificate with recommendation for award; certificate of achievement; certificate of participation; certificate of appreciation; recommendation for White House assignment checklist; letter of recommendation; enlistment documents; separation file; Plea Agreement, dated 1 September 2006, with its offense report; Fort Huachuca Request for Legal Action; DD Form 214; discharge Orders; Pre-Separation Counseling Checklist; and ERB. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the serious incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends his discharge was inequitable because the incident that caused his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant contends the discharge was unjust because his discharge was completed prior to the civilian court's ruling that the judgment of conviction was set aside and the information and/or indictment was dismissed; and the ultimate ruling was not taken into consideration even after multiple NCOs in attendance reported the information back to the command. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient 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 sufficient evidence has been provided with the request for an upgrade of the discharge. The third party statements provided with the application speak highly of the applicant's performance and character. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and change the narrative reason for his discharge. 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 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 9 October 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 AR20180000625 1