1. Applicant’s Name: a. Application Date: 3 February 2021 b. Date Received: 16 February 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade of the characterization of service. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, 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 Army Discharge Review Board will consider the applicant for a possible upgrade to honorable. The applicant seeks relief contending, in effect, was wrongfully charged and accused of assault. The applicant’s accuser E.U.G., who did have a romantic relationship with the applicant while in AIT, said in a statement to CID that “consented” to sexual intercourse. The applicant believes that alone should throw out any accusation of rape and the applicant truly feels that the only reason that this situation went as far as it did is because E.U., knew of impending trouble as well, so decided to flip everything on the applicant. Something that could have simply been a UCMJ turned into something that it was not; the applicant would still have an Army career. The applicant’s charges from CID were burglary, abusive sexual contact, assault, and violation of general order of regulation. The applicant feels that the only thing guilty of is violation of general order of regulation for going on the floor of the opposite gender to see E.U.G., anything other than that was simply consensual. E.U.G. knew the applicant was coming, and they had sexual intercourse so if anything, they are both guilty of the same thing. Nothing was forced as E.U.G. consented to everything that took place in the room as statements attest and the applicant has proof. The applicant feels was wrongfully accused of assault. b. Board Type and Decision: In a records review conducted on 7 December 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (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: 25 March 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 March 2020 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 May 2019 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92G10, Culinary Specialist / 1 year, 13 days d. Prior Service / Characterizations: USAR, 13 March 2019 to 20 May 2019 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Reports submitted by the applicant with his application indicate the applicant was the subject of investigation for Rape; the applicant was reported as having sexually assaulted PV2 B. while in her room. It was also noted that the applicant was the subject of investigation for Burglary. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Law Enforcement Reports, dated 30 January 2020 and 10 February 2020; memorandum for Special Agent in Charge, reference Probable Cause and Final Report Legal Opinion, dated 21 January 2020; and character statement of support. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally are appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. e. 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 “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. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to the characterization of service. The applicant’s available record of service, the issues and documents submitted with the application were carefully reviewed. 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’s Army Military Human Resources Record (AMHRR) is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does indicate on 16 March 2020, was approved for discharge with a characterization of service of Under Other Than Honorable Conditions. The applicant’s AMHRR also contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of under other than honorable conditions. The separation authority’s decision memorandum dated 16 March 2020, was in the applicant’s record and confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant would have, 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 would have admitted guilt to the offense, or a lesser included offense, and the applicant would have indicated he understood the possibility of an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran benefits. All requirements of law and regulation would have been met and the rights of the applicant would have been 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. The applicant seeks relief contending in effect, was wrongfully charged and accused of assault. The applicant’s accuser E.U.G., who did have a romantic relationship with the applicant while in AIT, said in a statement to CID that “consented” to sexual intercourse. The applicant believes that alone should throw out any accusation of rape and the applicant truly feels that the only reason that this situation went as far as it did is because E.U., knew of impending trouble as well, so decided to flip everything on the applicant. Something that could have simply been a UCMJ turned into something that it was not; the applicant would still have an Army career. The applicant’s charges from CID were burglary, abusive sexual contact, assault, and violation of general order of regulation. The applicant feels that the only thing guilty of is violation of general order of regulation for going on the floor of the opposite gender to see E.U.G., anything other than that was simply consensual. E.U.G. knew the applicant was coming, and they had sexual intercourse so if anything, they are both guilty of the same thing. Nothing was forced as E.U.G. consented to everything that took place in the room as statements attest and the applicant has proof. The applicant feels was wrongfully accused of assault. The applicant’s contentions were noted; however, evidence submitted by the applicant with the application indicates the applicant was the subject of investigation for Rape; the applicant was reported as having sexually assaulted PV2 B. while in the PV2’s room. It was also noted that the applicant was the subject of investigation for Burglary. On 21 January 2020, Trial Counsel after a thorough review of the investigative file, determined there was probable cause to believe the applicant committed the offense of Rape in violation of Article 120, UCMJ. It is unknown if the applicant’s contentions have merit because the complete facts and circumstances leading to the discharge are not contained in the service record. The burden of proof remains with the former Soldier to provide the appropriate documents such as the complete discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be the applicant’s responsibility to meet the burden of proof since the complete discharge packet is not available in the official record. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant seeks relief contending that was wrongfully accused of assault and rape. The Board considered this contention and found it directly contradicts all evidence in official records. The applicant did not provide sufficient evidence to support the contention for the Board’s consideration. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant did not provide sufficient evidence to support the contention for the Board’s consideration which might excuse or mitigate the offenses of rape, sexually assault, and burglary. 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. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210010899 1