1. Applicant's Name: a. Application Date: 27 December 2017 b. Date Received: 11 January 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of an under other than honorable conditions discharge to honorable; a narrative reason change; and, a reentry (RE) code change. The applicant seeks relief contending, in effect, the applicant was found guilty of the accusations in the Article 15 based largely, if not entirely upon unsubstantiated and unverifiable evidence. The reach involved in moving this case forward is clearly demonstrated by the addition of the Fort Irwin 2012 allegation. Likewise, the mere fact that the Fort Irwin allegation was added, calls into question the credibility and veracity of the other allegations. Ultimately, as a direct result of this Article 15, the applicant was involuntarily administratively separated thus, the effect of the action was prejudicial. Overall, even considering the presumption of regularity in the conduct of governmental affairs there exists in this case substantial credible evidence to support errors of both equity and propriety. Accordingly, justice demands the applicant receive the requested relief. 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, Generalized Anxiety Disorder, Major Depressive Disorder and Borderline Personality Disorder. The VA has diagnosed the applicant with Unspecified Depressive Disorder and Unspecified Anxiety Disorder. The applicant is 80% service-connected through the VA. In summary, although the applicant has a BH diagnosis, it is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 15 March 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: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 16 January 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (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: 21 July 2010 / NIF b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 135 c. Highest Grade Achieved / MOS / Total Service: E-5 / 68W20, Health Care Specialist / 16 years, 6 months, 1 day d. Prior Service / Characterizations: RA, 16 July 1998 - 13 March 2003 / HD RA, 14 March 2003 - 18 January 2006 / HD RA, 19 January 2006 - 20 July 2010 / HD e. Overseas Service / Combat Service: Korea, SWA / Kuwait (20 June 2014 - 18 November 2014) f. Awards and Decorations: AAM-2, AGCM-4, NDSM, GWOTEM, GWOTSM, KDSM, NCOPDR, ASR, OSR g. Performance Ratings: 6 August 2012 - 19 November 2012 / Fully Capable 20 November 2012 - 19 November 2013 / Marginal 20 November 2013 - 31 August 2014 / Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 22 April 2013, for without authority go from her appointed place of duty (25 March 2013); for being derelict in the performance of her duties in that she negligently failed maintain order of the Forward Aid Station (25 march 2013); for wrongfully soliciting PVT M to give a false statement to 1LT T, by instructing him to give a false statement (25 March 2013); and, for wrongfully soliciting PFC A to give a false statement to 1LT T, by instructing him to give a false statement (25 March 2013). The punishment consisted of a reduction to E-4 (suspended); forfeiture of $1,201 pay (suspended); and, an oral reprimand. CID Report of Investigation - Initial, dated 23 July 2014, reflects a preliminary investigation revealed the applicant touched PFC K in a sexual manner. PFC K stated she was lying on her bed when the applicant laid on top of her and "nuzzled" her breasts without consent. In a second incident, the applicant touched SPC S in a sexual manner. SPC S reported the applicant hugged her and she could feel applicant's face against her breast. SPC S stated she told the applicant to stop; however, SPC S stated the applicant said, "You're going to have to get used to it, I'm not letting go." CID Report of Investigation - Initial Final, dated 18 August 2014, reflects an investigation established probable cause to believe the applicant committed the offense of Abusive Sexual Contact when she touched SPC [redacted] and PFC [redacted] in an inappropriate manner. FG Article 15, dated 30 August 2014, for committing sexual contact by causing bodily harm to PFC K, by laying on top of her an placing her head on her breasts (23 June 2014); for committing sexual contact by causing bodily harm to SPC S by wrapping her arms around her body and placing her head on her left breast and stating "Oh squishy" or words to that effect (29 June 2014); and, wrongfully violating a lawful regulation by wrongfully making comments of a sexual nature to a female Soldier by saying "you area really cute and if I was a lesbian I would date you" and "its's ok we can have a threesome later," or words to that effect and by acting like she was kissing the Soldier (19 April 2014). The punishment consisted of a reduction to E-4; forfeiture of $1,213 pay per month for two months (suspended); and, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed enclosures. 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. 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 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, through counsel, requests an upgrade of her under other than honorable conditions discharge to honorable; a narrative reason change; and, a reentry (RE) code change. The applicant's available record of service, the issues and documents submitted with her application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to her 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 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), 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 applicant's contentions about her discharge being inequitable because in was based on punishment that lacked the necessary evidentiary support, 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 the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ"." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends that she had good service. The applicant's service accomplishments and the quality of her service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for her accomplishments. The applicant contends that the punishments she received were based on unsubstantiated and unverifiable evidence. However, the applicant's issues do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. If the applicant desires a personal appearance hearing, it will be her 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 15 March 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 AR20180001749 1