1. Applicant's Name: a. Application Date: 23 October 2018 b. Date Received: 9 November 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, he was arrested and confined by the Columbus, Georgia Police Department, after being accused of a felony crime. On 10 April 2018, the grand jury issued a no bill of indictment and the case was closed. The applicant did not commit a serious offense nor was he convicted of committing a serious offense. The applicant's discharge is now incorrect and he desires an upgrade to allow him to re-enter the Army. In a records review conducted at Arlington, VA on 30 September 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: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 6 November 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 September 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 27 November 2014, he wrongfully performed a sexual act on Ms. X., a married woman who was not his wife. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 9 September 2015, the applicant waived his rights to consult with a JAG officer. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 October 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 December 2012 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 4 years, 7 months, 27 days d. Prior Service / Characterizations: RA, 1 October 2010 - 2 December 2012 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (31 October 2012 - 28 July 2013) f. Awards and Decorations: ACM-CS, ARCOM-2, AAM, AGCM, NDSM, GWOTSM, NCOPDR, ASR, OSR, NATOMDL g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Supplement Report, Columbus Police, dated 28 May 2015, reflects the applicant was charged with Felony Aggravated Sodomy. This decision was based on Ms. X's assertion that she was too drink to consent to sex, and claims that she cannot even remember what happened after she was put to bed. Ms. C. stated the applicant was in her bed when she woke up and her panties were in the trash can. Mr. X., who was in the apartment at the time of the incident, has corroborated Ms. X.'s assertions in that he stated he observed Ms. C. too drunk to stand on her own and throwing up violently after consuming numerous alcoholic beverages. Mr. X. stated she was so drunk, he and the applicant had to help her to bed. Mr. X. further stated that the applicant confided in him that he "messed up" and performed oral sex on Ms. X. In Mr. X estimation, Ms. X. was too drunk to consent to sex. Law Enforcement Report - SIR, dated 25 June 2015, reflects and investigation by the Columbus Police Department (CPD), and CID established probable cause to believe the applicant sexually assaulted Mrs. X at her off-post residence while she was intoxicated. Judge M. X., Recorder's Court, Columbus, GA, concurred there was probable cause to believe the applicant committed the listed offense. On 28 May 2015, the VPD arrested and charged the applicant with felony Aggravated Sodomy. On 1 June 2015, the applicant appeared in Recorder's Court and pled "not guilty" to the offense. The court found probable cause existed to believe the applicant committed the offense and bound the case over to the Superior Court. The applicant was held without bail. Report of Mental Status Evaluation, dated 27 August 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. Enlisted Record Brief, dated 9 November 2015, notes the applicant was under arrest, confinement or pending military or criminal court action. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None submitted with the application. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Bill of Indictment; Letter of Recommendation. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. 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 military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. 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 that after his discharge, the charges against him were dropped and now his discharge is incorrect. The applicant provides a court document to support his contention. 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. The third party statement provided with the application spoke highly of the applicant's performance. The author recognized his good performance while in the Army; however, the statement did not 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 30 September 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 AR20180016366 2