1. Applicant's Name: a. Application Date: 6 July 2018 b. Date Received: 9 July 2018 c. Previous Records Review: 9 November 2016, AR20160008097 d. Counsel: 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 for discharge. The applicant refers to the application that was considered in the previous records review. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the request for relief is based on standards of equity and propriety, and the discharge was in violation of AR 635-200. Of consideration should be that the applicant's conduct while on active duty was honorable as there was no record of any misconduct and the mitigating factors that include post-service accomplishments and letters of support. The applicant's service records reflect an honorable service. (The counsel detailed the circumstances surrounding the events that led to the applicant's discharge.) The basis for the civilian conviction predated the applicant's time on active duty; therefore, the service was honorable. The separation process took over a year to complete, during which a change of command took place and the applicant's civilian case appeal was still pending. It is impossible to determine if the new Brigade Commander knew the conviction stemmed from an issue that predated the applicant's period of service. The applicant understood through the trial defense counsel that "due to appeal and the regulation, the Army could not move forward with separation." The separation documents having "no mention of his appeal" should have been "a procedural error." In a personal appearance hearing conducted at Arlington, VA on 15 July 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 (Civil Conviction) / AR 635-200, Chapter 14, Section II / JKB / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 December 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 August 2008 (The applicant acknowledged receipt of his separation proceedings and his right to make his election of rights on 3 September 2008.) (2) Basis for Separation: The applicant was informed of the following reasons: On 3 February 2006, the applicant was convicted of rape by a County Criminal Court. On 21 March 2006, he was sentenced to a minimum of three years of confinement. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 December 2008 and 5 January 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 January 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 November 2002 / 6 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10, Information Technology Specialist / 3 years, 4 months, 16 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (1 June 2004 to 3 December 2004), (1 June 2005 to 3 February 2006) f. Awards and Decorations: JSAM-2; NDSM; ICM-3CS; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Applicant's Appeal (civilian court) for reconsideration, dated 21 October 2008, is self- explanatory, with applicant's letter to CPT M. DA Form 4187, dated 8 December 2009, indicates the applicant's duty status changed from PDY to Civilian Confinement, effective 21 March 2009. Discharge Orders There is no record of any negative counseling statement, and/or action under the UCMJ. The applicant was discharged at the rank of SPC/E-4. i. Lost Time / Mode of Return: 1361 days (Civilian Confinement on 21 March 2006 through 11 December 2009) / The applicant remained in confinement at the time of his discharge. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD form 293 (Application for the Review of Discharge), dated 6 July 2018; DD Form 214; and the complete record of his previous records review application and its disposition. Additional Evidence: Two JSAM certificates with its narratives and certificate of appreciation. 6. POST SERVICE ACCOMPLISHMENTS: The counsel presents on behalf of the applicant, that since his discharge, he has been a productive member of society: he has been employed, operating his own computer repair business, and consistently donating blood; he volunteers at a local soup kitchen; he does physical training with Marine and Army recruiters; and he is in the process of completing his associate's degree at a local college, where he made the Dean's List in Spring 2015 semester. 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 14-5 stipulates that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: (1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended. (2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (See AR 600-8-19.) 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, misconduct (civil conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" 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 and to change the narrative reason for his discharge. 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 incident of misconduct (civil conviction), the applicant knowingly risked a military career and diminished the quality of his service. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence that the applicant's service mitigated the misconduct or poor performance, such that he should have been retained on Active Duty. The applicant contends the discharge was unjust because that his conduct during his active duty service was honorable with no record of any misconduct; the basis for the civilian conviction predated his time on active duty; his separation process took over a year to complete, during which a change of command took place and the applicant's civilian case appeal was still pending; it was understood through his trial defense counsel that due to his appeal and the regulation, the Army could not move forward with his separation; and his separation documents having no mention of his pending appeal, was a procedural error. 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 through his counsel's brief, 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 incident of his civil conviction, and his post-service accomplishments, 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; 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 14, Section II is "Misconduct (Civil Conviction)," and the separation code is JKB. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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): Letter of Recommendation - 1 Page Counseling Forms - 60 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 15 July 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 AR20180010904 1