1. Applicant's Name: a. Application Date: 23 March 2019 b. Date Received: 11 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, the characterization of service was unequitable due to the questionable circumstances of the allegations. The applicant's character and accomplishments as an officer and a civilian warrants an honorable discharge. The applicant's overall quality of service and post-service achievements warrant an honorable discharge. A prior records review was conducted at Arlington, VA on 5 September 2018. In a personal appearance hearing conducted at Arlington, VA on 29 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: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 3 October 2014 c. Separation Facts: Yes (1) Date Charges Were Preferred: 20 March 2014 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which shows on 2 July 2014, the applicant was charged with committing sexual contact upon PFC X (formerly M.), by touching her breast, buttock, and leg with his hand, by causing bodily harm to her by touching her breast, buttock, and leg with his hand without her consent between (14 February 2013 and 28 February 2013); commit sexual contact upon PFC X (formerly M.), by touching her breast with his hand, by causing bodily harm to her, by touching her breast with his hand without her consent (15 August 2013); did maltreat PFC X (formerly M.), a person subject to his orders, by making repeated offensive comments and gestures of a romantic and sexual nature (15 August 2013); with intent to deceive, make to Special Agent L.A.P., an official statement, "I laid down next to her and that was it" or words to that effect, which statement was false in that the said applicant touched the breast and buttock of PFC X (formerly M.) and was then known to be so false (16 August 2013); and on divers occasions, unlawfully touch PFC X (formerly M.) on her hand with his hand (15 August 2013). (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: On 3 September 2014, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 July 2009 / 5 years / extension of service was at the request and for the convenience of the government. b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B1P, Military Police / 5 years, 2 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan, 14 June 2012 to 24 September 2012 f. Awards and Decorations: AAM, AGCM, ACM-2CS, GWOTSM, ASR, NATO MDL, CAB g. Performance Ratings: 1 March 2013 to 28 February 2014, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief (six pages) with Exhibits 1 through 10 as listed in the brief. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states through counsel he has thrived since being discharged from the Army. He accepted a positions as a cashier at a Home Depot in Mesa, Arizona and as a customer service agent for UHAUL Moving and Storage. Subsequently, he moved again to New York and accepted a position with Allied Barton as a Security Officer. He was promoted to the position of Site Supervisor, where he is responsible for the safety of more seventy residents and the training, scheduling, and supervision of his employees. 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 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 the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant's record of service, the issues and documents 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. His record documents several acts of significant achievement and valor to include a combat tour; however, it did not support the issuance of an honorable or a general discharge by the separation authority at the time of separation. The applicant requests a change to the narrative reason for separation to include the RE code. 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 regulation further stipulates that no deviation is authorized. 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. However, Soldiers being processed for separation are assigned reentry codes based on their reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. There was no basis upon which to grant a change to the reason or to the RE code. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The applicant through counsel seeks relief contending, his characterization of service was inequitable due to the questionable circumstances of the allegations. 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 this contention. 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 further contends, his character and accomplishments as an officer and a civilian warrants an honorable discharge. 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 also contends, his overall quality of service and his post-service achievements warrant an honorable discharge. The applicant's post-service accomplishments have been noted as outlined on the application. 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): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 29 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 AR20190003814 4