1. Applicant's Name: a. Application Date: 18 April 2019 b. Date Received: 7 May 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant requests a narrative reason change and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, was charged with standing to close to a female after bumping into her on a troop bus. A three-month CID investigation resulted in charges that the Trial Defense counsel said the investigation was trash and the charges were outlandish. The command allowed the applicant's counsel to investigate charges, who was able to easily rebut the CID investigation, which resulted in all the charges against the applicant being dropped. The applicant believed one would be returned to duty, but the command proceeded with separation. Trial Defense sent the command a memorandum requesting the applicant be separated under chapter 13, but the command separated the applicant without reason under chapter 14-12c. 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 Suicidal Ideation. VA records only contain DoD content. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 20 November 2019, and by a 4-1 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: 22 March 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 February 2019 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 5 November 2018, an investigation was conducted into allegations that he violated SHARP policy in that on numerous occasions he inappropriately touched female Soldiers without their consent and in a manner which could be suited to constitute Abusive Sexual Contact. Due to this serious misconduct, he has been recommended for separation IAW AR 635-200, Chapter 14-12c. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 26 February 2019, the applicant waived his rights to consult with a JAG officer. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 March 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 July 2018 / 19 weeks (IADT) b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 1 year, 3 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 28 January 2019, engage in sexual contact with PVT D, by touching her leg with his groin (6 November 2018); engage in sexual contact with PVT B, by rubbing his arm on her chest (between 1 and 20 November 2018); engage in sexual contact with PV2 W, by placing his hand on her upper thigh (9 November 2018); and, assault PV2 T, by touching her buttocks with his hand (between 1 and 7 November 2018). The record of proceedings was not signed by the applicant and the record does not reflect any imposed punishment. Law Enforcement Report - Final, dated 14 December 2018, reflects canvass interviews of the unit wherein PVT [redacted] and PV2 [redacted] were identified as victims in the investigation. PVT [redacted] stated the applicant inappropriately touched her on her chest without consent while being transported back from training. PV2 [redacted] stated PV2 [redacted] inappropriately touched her thigh without consent while at dinner chow. For the purposes of fingerprint card submission, CODIS sample submission, and DIBRS indexing, on 12 December 2018, Trial Counsel, opined probable cause exists to believe the applicant committed the offense of Abusive Sexual Contact. No additional investigative efforts were required. There was sufficient evidence to provide to command for consideration of action. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Request for Separation (memo); two Agent's Investigation Report with allied Canvass Interview Worksheets; DA Form 2627 and allied documents; two DA Forms 4856; Assumption of Command (memo); three DA Forms 268; Enlisted Record Brief; and, three emails. 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, paragraph 12c, 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 general (under honorable conditions) discharge to honorable, a narrative reason change and a reentry eligibility (RE) code 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 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 the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under 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 regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant requests a RE code change. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the 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 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends he was separated for serious misconduct without reason. 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 evidence of the record reflects that the applicant was notified of the specific reasons for his separation and he acknoweledged receipt of the notification on 25 February 2019. 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 20 November 2019, and by a 4-1 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 AR20190005657 1