1. Applicant's Name: a. Application Date: 10 January 2019 b. Date Received: 22 January 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable and a change to narrative reason for separation to Army Service Contract / Fulfilled. The applicant seeks relief contending, in effect, that the handling of the discharge was extremely prejudiced, unprofessional, unconstitutional, and intently cruel. The entire reason for dismissal remains meritless, unjust, and an example of blatant misuse of power. 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 diagnoses of Anxiety Disorder NOS, Adjustment Disorder, and PTSD. The applicant does not have any VA records available for review. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 8 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 14 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 8 June 2011 (2) Basis for Separation: The applicant was informed of the following reasons: for encouraging and permitting his sister Ms. X., who was approximately 14 years old, to wrongfully touch his penis on 18 June 2008; Wrongfully touching the genitals of his sister, Ms. X., who was approximately 14 years old, while she was asleep on 18 June 2008; Coercing his sister, Ms. X., who was approximately 14 years old, to have sexual intercourse with him by threatening to tell others that he had observed her viewing pornographic material on the internet and by threatening to tell others about his previous illegal sexual contact with her, if she did not comply; and, by promising to buy her a cell phone and offering her money, if she engaged in intercourse with him on 18 June 2008; Making a false official statement to Special Agent X., when he denied ever having sexual intercourse with his sister, Ms. X. on 31 December 2009; Making a false official statement to Special Agent X., when denied ever touching the vagina of his sister, Ms. X. on 31 December 2009; Making a false official statement to Special Agent X., when he denied that his sister, Ms. X, had ever touch his penis on 31 December 2009; Making a false official statement to Special Agent X, when he denied ever touching his sister, Ms. X., in a sexual manner on 31 December 2009; Wrongfully leaving the scene of an accident on 23 September 2010; Failing to obey a lawful order from SFC X., when he refused to diligently search for the owner of the vehicle he hit in the parking lot of building #7673 on Fort Riley, Kansas on 23 September 2010; and Making a false official statement to Investigator X. III, when he denied knowing that he had hit a vehicle parked in the parking lot of building #7673 on Fort Riley, Kansas on 23 September 2010. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 11 October 2011, the applicant request consideration of his case by an administrative separation board. (5) Administrative Separation Board: On 14 October 2011, the applicant case was referred to an administrative separation board. On 7 December the administrative separation board convened. The board subsequently found that the applicant committed a serious offenses. The administrative separation board recommended that the applicant be separated from the service in accordance with AR 635-200, Chapter 114, paragraph 114-12c, Commission of a Serious Offense and that his service be characterized as Under Other Than Honorable Conditions. (6) Separation Decision Date / Characterization: 10 February 2012 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 November 2006 / 6 years, 26 weeks b. Age at Enlistment / Education / GT Score: 21 / 14 years / 90 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91C10, Utilities Equipment Repairer / 5 years, 4 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (20 July 2009 to 10 April 2010) f. Awards and Decorations: AGCM, NDSM, GWOTSM, ICM-CS, NOPDR, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Sensitive Report, dated 22 December 2009, which indicates the applicant is the subject of investigation for forced sodomy, third degree sexual assault, first degree child molestation, and false official statement. Investigation Report, dated 5 January 2010, indicates the applicant admitted he knowingly fondled Ms. S vagina, over the clothes, and her breast on a few occasions prior to entering the military. The applicant also admitted to allowing Ms. S. to fondle him on a few occasions. Sexual acts occurred in RI in late 2003 and 2004. The applicant denied any oral sex or sexual intercourse occurred between him and Ms. S. CID Report, dated 24 March 2010, indicates the applicant is the subject of investigation for forced sodomy, third degree sexual assault, first degree child molestation, and false official statement. Military Police Report, dated 23 September 2010, which indicted the applicant was the subject of investigation for a traffic accident: vehicle to vehicle, fleeing the scene of a traffic accident; and making false official statement. Military Police Traffic Accident Report, dated 23 September 2010. FG Article 15, dated 4 November 2010, for wrongfully leaving the scene of an accident without making his identity known on or about 23 September 2010, wrongfully subscribing under lawful oath, a false statement in substance as follows "I did not hit the vehicle or words to that effect" which statement he did not believe to be true on 23 September 2010, and disobeying a lawful order from a senior noncommissioned officer to find the owner of the vehicle he hit, an order which was his duty to obey, he willfully disobey the same on 23 September 2010. The punishment consisted of reduction to E-4, forfeiture of $1,047 pay (suspended), and extra duty for 45 days. The applicant's request for his administrative separation to be suspended until the completion of his civilian criminal trial on 23 January 2012. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; letter from the Army Review Boards Agency, dated 6 August 2012, and an Order For Expungement/Sealing of Records from the Superior Court of Kent County of the State of Rhode Island and Providence Plantations. 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a change to his narrative reason for separation to Army Service Contract / Fulfilled. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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 evidence of record shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." 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 appropriate RE code is 4. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that the handling of his discharge was extremely prejudiced, unprofessional, unconstitutional, and intently cruel. The entire reason for his dismissal remains meritless, unjust, and an example of blatant misuse of power. The document submitted by the applicant (i.e., Order for Expungement/Sealing of Records) was noted; however, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. The applicant's service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 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 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 8 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 AR20190002945 1