1. Applicant's Name: a. Application Date: 25 October 2018 b. Date Received: 1 November 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the Board recognize the harmful errors surrounding the investigations leading to his general characterization of service. It is respectfully submitted the prejudice caused by those errors warrants a discharge upgrade as a matter of propriety. The AR 15-6 investigation was the foundation of the applicant's general discharge because of the findings he engaged in misconduct and sexual harassment. There are glaring legal and factual errors made by the investigation officer (IO), which perpetuated by the command's failure to recognize those errors. The IO's violations of AR 15-6 and the subsequent command failures are errors of fact, law, and abuses of discretion. Additionally, the injustices suffered by the applicant of losing his career and a harmful characterization of service call for action on the basis of equity. The disproportionately harsh discharge warrants an upgrade based upon equity Department of Defense Instruction 1332.28 enumerates factors to weigh the equity of an applicant's discharge and directs "other evidence presented" also be considered. While the definition of "other evidence" is not provided in DoD 1332.28, prior decisions by the Board offer guidance related to the scope of the term. The behaviors surrounding applicant's separation are far less severe than those in another case; yet the ADRB concluded that an honorable discharge characterization was appropriate in that application. Accordingly, it would be wholly inequitable to allow the applicant's general discharge to stand. The applicant's five-year tenure in the Army is consistent with honorable service as opposed to general discharge. The applicant completed the U.S. Army Air Assault Course and Airborne training and earned several awards. He deployed in support of OEF less than one year after his commission date and despite being a young lieutenant, he consistently exceeded expectations. This is reflected in his Officer Record Brief, Officer Evaluation Reports, and in the testimony from his Board of Inquiry. The applicant further details his contentions in an allied legal brief submitted with the application. In a records review conducted at Arlington, VA on 7 October 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2a and 4-24a (2) / KNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 16 November 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 March 2015 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b for acts of misconduct, moral or professional dereliction, due to the following reasons: Substantiated derogatory activity resulting in an Article 15, fated 25 March 2014, which was filed in his Army Military Human Resource Record. Conduct unbecoming an officer as indicated by the above-referenced item. (3) Resignation In Lieu of Elimination: On 19 March 2015, the applicant submitted a Resignation in Lieu of Elimination conditioned upon receiving a characterization of service no less favorable than General (Under Honorable Conditions). (4) GOSCA Recommendation Date / Characterization: On 7 May 2015, the GOSCA recommended disapproval of the applicant's conditional resignation in lieu of elimination and that a Board of Inquiry (BOI) be directed. (5) Board of Inquiry (BOI): On 2 June 2015, a BOI recommended the applicant be separated from service with a General (Under Honorable Conditions) discharge. (6) DASA Review Board (RB) Date / Decision: 16 July 2015 / The DASA RB did not accept the applicant's resignation and directed the case be returned to the GOSCA, and directed a BOI be conducted unless the applicant submitted an unconditional resignation in lieu of elimination. After a BOI recommended the applicant be involuntarily eliminated from the Army, the Ad Hoc Review Board reviewed the Discharge in Lieu of Elimination request. On 23 October 2015, the DASA RB approved the applicant's discharge. / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 7 May 2010 / Indefinite b. Age at Appointment / Education: 21 / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-2 / 91A 5P 2B, Maintenance/ Munitions Materiel Officer / 5 years, 6 months, 10 days d. Prior Service / Characterizations: USAR, 7 May 2010 - 11 June 2010 / NIF e. Overseas Service / Combat Service: SWA / Afghanistan (7 February 2011 - 7 February 2012) f. Awards and Decorations: ACM-2CS, ARCOM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: 11 June 2010 - 6 June 2011 / Best Qualified 7 June 2011 - 8 May 2012 / Best Qualified 9 May 2012 - 8 May 2013 / Best Qualified 9 May 2013 - 20 December 2013 / Best Qualified h. Disciplinary Action(s) / Evidentiary Record: GO Article 15, dated 14 March 2014, for wrongfully and dishonorably, assault First Lieutenant A. D., by causing her to be forced against the floor and positioning his upper body over her while unlawfully placing his hands on her shoulders with the intent to kiss her and gratify his sexual desires, which conduct was to the disgrace of the armed forces and unbecoming of an officer and a gentleman. The punishment consisted of a forfeiture of $2,195 pay per month for two months; and, a written reprimand. Promotion Review Board Results, dated 11 December 2014, reflects the applicant's records were referred to a Department of the Army Promotion Review Board (PRB) for reconsideration of his promotion status. The Secretary of the Army decided to remove him from the promotion list. Findings and Recommendations for AR 15-6 Investigation, dated 20 December 2013, found: On or about the end of January 2013, the applicant was with 1LT D. in her residence while off-duty. On or about the beginning of July 2013, SFC C., 7-101 BN SARC, informed LTC H., 7-101 CDR, that a Soldier in 7-101 had filed a restricted Sexual Assault. On or about 17 July 2013, MAJ R., 7-101 XO, informed LTC H. that during a formal negative counseling with 1LT D., she confided in him that she had been sexually assaulted. On or about 22 August 2013, MAJ R. notified LTC H. that 1LT D. had confided that the assailant was someone within the battalion. On 5 September 2013, 1LT D. revealed lo LTC H. and SFC C. that the applicant was the assailant. On 6 September 2013, SFC C. filed a CSlR concerning the unrestricted report of a Sexual Assault on 1LT D. against the alleged subject (the applicant). Prior to 3 November 2013, the applicant repeatedly asked 2LT S., the new 7-101 S1, to attend the BOE Ball despite rejection of his invitation. According to Article 120: Rape and Sexual Assault in the Uniform Code of Military Justice (g)(2)(A), the applicant performed sexual contact with 1LT D. when he climbed on top of 1LT D without consent. The applicant then caused bodily harm to 1LT D. through the use of force by restraining her arms and shoulders. The alleged misconduct involving the applicant did occur on or about the end of January 2013. 1LT D explicitly detailed the events leading up to the alleged sexual assault at that time. During the course of the interview with the 1LT D., the explanation of the events was drawn out and consistently interrupted due to 1LT D being emotionally overwhelmed. When she composed herself, she would continue to add detail to the situation and progress the chronology of the event. In comparison, the applicant explicitly details, to the day, matters that pertain to his duties while serving in 7-101 since his arrival to the unit over two years ago, but becomes unsure when asked about the alleged event that occurred within the last year. The applicant would answer quickly to any question regarding service within the Army or event before and after this incident with regards to 1LT D, but would be evasive when it came to questions regarding the incident itself. The applicant made a false statement in reference to his conduct with 2LT S. that is also corroborated by MAJ R.'s statement. The applicant did engage in sexual harassment as defined by AR 600-20, paragraph 7-4 when he used his rank as part of a verbal statement to a female Soldier within the unit in order to gain her consent to his advances. 1LT D alluded to another Soldier within the unit that has had an experience with the applicant, but stated that she promised that Soldier that she would not reveal that Soldier's identity. In conjunction with MAJ R.'s statement, it could be concluded that there is another Soldier within the unit beyond 2LT S. that was a harassment victim. The recommendation was the command punish the applicant with violation of the Army's Sexual Harassment policy as defined by AR 600-20 para. 7-4. Although there was no further evidence beyond 1LT D.'s statement, performance and behavior and the applicant's false statement, the IO would strongly recommend the command punish the applicant for violation of Article 120, due to his unconsented sexual contact upon 1LT D. CID Report of Investigation - Final, dated 19 March 2014, reflects an investigation established probable cause to believe the applicant committed the offense of Abusive Sexual Contact when he pinned 1LT [redacted] to the ground and attempted to kiss her without her consent. Report of Mental Status Evaluation, dated 30 March 2015, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. 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 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service may be granted. 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 "KNC" as the appropriate code to assign commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct; and, 4-24a (2), discharge in lieu of elimination. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant's record of service, 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained. Further, the applicant's record contains no evidence of arbitrary or capricious actions by the command. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 4, paragraph 4-2b and 4-24a (2), AR 600-8-24 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "KNC." 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. The applicant contends his discharge was based on legal and factual errors made by the investigation officer (IO), which perpetuated by the command's failure to recognize those errors. However, 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 character of the applicant's discharge is commensurate with his overall service record. Further, the legal and factual matters of a AR 15 investigation, 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. The applicant contends that other Soldiers with were granted upgrades by the Board, who commited far more egregious acts of misconduct. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The third party statements provided with the application speak highly of the applicant's performance. 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. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 7 October 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 / 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 AR20180014289 1