1. Applicant's Name: a. Application Date: 27 March 2018 b. Date Received: 2 April 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, was discharged after two years and eight months of being investigate by CID. The applicant was fighting an estranged wife for custody of their daughter and after the wife failed a court-mandated drug test, she informed the chain of command that the applicant was abusing her over the entire six-year marriage, which was false. The applicant remained patient, reliable and hardworking, being sure that the truth and justice would be served, but to no avail. After almost three years, the applicant was offered the opportunity to get out in lieu of trial by court-martial. The applicant's career was all but ruined and took it to move on with life. The applicant served the country in war, on more than one occasion, and was discharged with nothing to show for it-all due to a fabricated story with absolutely zero evidence to substantiate anything and countless hours of being investigated. 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 the applicant was seen by BH and found to have no psychiatric diagnosis. VA records indicate the applicant is 70% service connected. In summary, the applicant did not have a BH diagnosis that was mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 28 January 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: 31 July 2015 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 24 July 2014, the following charges were preferred with recommendations to refer to trail by a special court-martial empowered to adjudge a bad conduct discharge: Charge I: Violation of Article 80, UCMJ, for attempting to commit a sexual act upon X. between 3 April 2013 and 4 April 2013. Charge II: Four specifications of violating Article 120, UCMJ: Specifications 1 and 2: causing X. to engage in a sexual act on two separate occasions, between 1 August 2009 and 31 August 2009, and on 4 May 2010 Specifications 3 and 4: committing a sexual act upon X. on two separate occasions, between 1 October 2012 and 31 October 2012. Charge III: Two specifications of violating Article 128, UCMJ: Specification 1: assaulting X. on 26 July 2009. Specification 2: assaulting SSG X. on 27 December 2010. Charge IV: Seven specifications of violating Article 134, UCMJ: Specification 1: communicating a threat to X. on 26 July 2009 Specification 2: being drunk and disorderly on 26 July 2009 Specification 3: orally communicating to X and X., certain indecent language on 26 July 2009 Specification 4 and 5: being drunk and disorderly on two separate occasions on 27 December 2010 and at two separate locations Specification 6: communicating a threat to X., between 1 June 2011 and 30 June 2011 Specification 7: orally communicating to X., certain indecent language between 1 June 2011 and 30 June 2011 (2) Legal Consultation Date: 4 June 2015 (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: 15 July 2015 / Under Other Than Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2012 / 6 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F2P, Petroleum Specialist / 8 years, 25 days d. Prior Service / Characterizations: RA (6 July 2007 to 29 June 2012) / HD e. Overseas Service / Combat Service: None / SWA (Afghanistan 15 August 2009 to 12 August 2010), (26 February 2012 to 25 August 2012) f. Awards and Decorations: ARCOM-3; AAM-3; AGCM; NDSM; ACM-2CS-3; GWOTSM; NCOPDR; ASR; OSR; NATO MDL; MUC g. Performance Ratings: Two NCOERs rendered during period of service under current review: 1 February 2012 thru 31 January 2013, Among the Best 31 January 2013 thru 30 January 2014, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1). General Officer Memorandum of Reprimand, dated 21 August 2014, indicates the applicant was reprimanded for driving under the influence of alcohol. 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 27 March 2018, and 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. 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 under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant's available record of service, and the issues and document 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. Although hrecord documents acts of significant achievement or valor, the separation authority determined that his achievements do not support the issuance of an honorable or a general (under honorable conditions) discharge. 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 the discharge was unjust because he was under CID investigation for over two years due to his estranged wife falsely accused him of abusing her over the entire six- year marriage, which was false. 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 any 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 evidence has been provided with the request for an upgrade of the discharge. In consideration of the applicant's service accomplishments and quality of his service prior to any incidents of misconduct, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. 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. 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): Self-Authored Discussion Points & References - 5 pages Court Documents & Correspondence - 69 pages Service Documents - 20 pages b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 28 January 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 AR20180006482 4