1. Applicant's Name: a. Application Date: 31 March 2018 b. Date Received: 4 April 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason and its corresponding codes for discharge. The applicant seeks relief contending, in pertinent part and in effect, the discharge was inequitable because it was based on a false allegation. The appeal to have the case disposed at the unit level was not addressed in light of the Article 32 hearing. Despite the Article 32 investigation clearing the applicant of the Article 120 rape charge and recommending that the case be resolved at the unit level, the applicant was not vindicated by the Army. For the last 14 years, the applicant has been wrongfully stigmatized by the Army and prohibited from reentry into any service. Before the stop-loss order, and before the charges were preferred against the applicant, the applicant was in the process of receiving a second honorable discharge and transitioning from the Army. After determining innocence and lacking credible evidence to implicate the applicant of the charges, the implicit findings at the IO's Article 32 hearing, and in the good spirit of service, it would be equitable to grant an upgrade and to change the reentry code 4, based on the service prior to the charges. In a records review conducted at Arlington, VA on 6 May 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 / General (Under Honorable Conditions) b. Date of Discharge: 19 November 2003 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (Note the applicant's trial defense counsel's memorandum indicates the applicant requested Chapter 10, AR 635-200, in lieu of trial by court- martial discharge prior to the Investigating Officer completing an Article 32 investigation. (IO Report NIF; however, according to the applicant's documentary evidence)) (2) Legal Consultation Date: 20 August 2003 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 1 November 2003 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 January 1999 / 4 years, 4 months (extended 4 months on 22 August 2000) (Applicant's documentary evidence shows the applicant was furthered extended beyond his ETS date due to pending court-martial, for the convenience of the government.) b. Age at Enlistment / Education / GT Score: 31 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 71L10, Administrative Specialist / 9 years, 6 months, 2 days d. Prior Service / Characterizations: USMC (18 May 1994 to 17 May 1998) / HD IRR (18 May 1998 to 20 January 1999) / NA e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: ARCOM; AAM-3; AGCM-2; MCGCM; NDSM-2; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum, dated 31 October 2003, Subject: Memorandum Accompanying Request for Discharge in Lieu of Trial by Court-Martial [the applicant], rendered by the applicant's defense counsel, explains the findings and recommendations, resulting from an Article 32 hearing, in the investigating officer report. Discharge Orders 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 31 March 2018; Investigating Officer's Report, dated 20 October 2003; Memorandum, dated 3 November 2003, rendered by the Staff Judge Advocate; Memorandum, dated 31 October 2003, rendered by Trial Defense Counsel; memorandum, dated 25 August 2003, for retention beyond ETS date; DD Form 214 x 2; and USMC DD Form 214. 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 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason and its corresponding codes for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, 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 admitted guilt to the offense, or a lesser included offense, and he 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 were met and the rights of the applicant were fully protected throughout the separation process. The general (under honorable conditions) discharge received by the applicant was appropriate under the regulatory guidance. His record documents no other acts of significant achievement or valor, and did not support the issuance of an honorable discharge by the separation authority at the time of discharge. The applicant contends the discharge was unjust because it was based on a false allegation, his appeal to have the case disposed at the unit level was not addressed in light of the Article 32 hearing, and despite the Article 32 investigation cleared him of the Article 120 charge and recommended that the case be resolved at the unit level, he was not vindicated by the Army. 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 and to change the narrative reason for his discharge. 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 to change the narrative reason for his discharge. The applicant requests to change the reason for his separation and its corresponding codes; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Insofar as the request to the change the reentry code, 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 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 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 6 May 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 AR20180006349 4