1. Applicant's Name: a. Application Date: 12 November 2015 b. Date Received: 16 November 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable. The applicant seeks relief contending, in effect, the Department of Veteran Affairs (VA), determined that his character of service for the period of 20 February 2001 to 7 November 2013, was considered honorable; and, therefore is entitled to all benefits administered by the VA. Per medical officer, AHLTA notes begin in year 2011 while applicant was in prison. The notes indicate that he was diagnosed with Anxiety Disorder NOS while in prison. According to the notes, he had a positive respect mil PTSD screen. Review of JLV indicates he is 20% SC by the VA. What he is service connected for is not clear but problem list includes diagnosis of Chronic PTSD. Review of his chart indicates that PTSD is severe, caused by things he saw as a combat medic. His symptoms worsened when Ft Hood began night gunnery training and improved once they stopped the training. Based on the information currently available, it is the opinion of the Agency psychiatrist that the applicant does not have a mitigating disorder for the misconduct leading to his discharge. The VA records clearly document the presence of combat related PTSD; however, PTSD is not mitigating for sexually based offenses. In a records review conducted at Arlington, VA on 16 June 2017, 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: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 7 November 2013 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 2, dated 17 August 2011, the violations of the UCMJ, pleas, and findings were as follows Charge I, violation of Article 93, maltreat PV2 X, by trying to kiss her (18 October 2010); Guilty, inconsistent with plea. Charge II, violation of Article 120, eight specifications: Forced 1LT X to engage in sexual contact, by grabbing her wrist and forcing her to touch his genitals over his clothing, by using strength sufficient that she could not avoid or escape the sexual conduct (10 August and 1 September 2010); Guilty, inconsistent with plea; Engaged in sexual contact with 1LT X, by grabbing her wrist and forcing her to touch his genitals over his clothing, without justification, authorization or permission (10 August and 1 September 2010); Guilty, inconsistent with plea; Forced 1LT X to engage in sexual contact, by grabbing her wrist and forcing her to touch the his exposed penis, by using strength sufficient that she could not avoid or escape the sexual conduct (1 and 19 September 2010); Not guilty, consistent with plea; Forced 1LT X to engage in sexual contact, by grabbing her wrist and forcing her to touch his exposed penis, by using strength sufficient that she could not avoid or escape the sexual conduct (10 August and 1 September 2010); Guilty, inconsistent with plea; Engaged in sexual contact with 1LT X, by placing his hands under her shirt and touching her breasts, such contact was without justification, authorization or permission (10 August and 1 September 2010); Guilty, inconsistent with plea; Engaged in sexual contact on divers occasions between 10 August and 19 September 2010, with 1LT X, by rubbing his genital area against her buttocks, such contact was without justification, authorization or permission (10 August and 1 September 2010); Guilty, inconsistent with plea (except for the words "on divers occasions"); Intentionally exposed, in an indecent manner, his penis to 1LT X (1 and 19 September 2010); Guilty, inconsistent with plea; Intentionally exposed, in an indecent manner, his penis to 2LT X (12 December 2010); Guilty, inconsistent with plea. Charge V, violation of Article 128; assault 1 LT X, who then was and was then known by the applicant to be a commissioned officer, by kissing her cheek and such act was unwanted and done without consent (10 August and 1 September 2010); Guilty, inconsistent with plea. Additional Charge, violation of Article 93; maltreat SPC X, a person subject to his orders, by asking SPC X to stand up and lean forward and then trying to kiss her (1 and 31 August 2009); Guilty, inconsistent with plea. (2) Adjudged Sentence: To be reduced to the grade of Private (E1), to be confined for 12 months, and to be discharged from the Service with a Bad Conduct Discharge. (3) Date/Sentence Approved: 17 August 2011 / only so much of the sentence, a reduction to E-1, 12 months confinement, and a bad-conduct discharge. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 July 2000 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / Bachelor's Degree / 115 c. Highest Grade Achieved / MOS / Total Service: E-8 / 68W1P, Health Care Specialist / 28 years, 7 months, 14 days d. Prior Service / Characterizations: ARNG, 22 May 1984 - 13 June 1985 / NIF IADT, 14 June1985 - 17 August 1985 / ELS RA, 7 September 1990 - 24 September 1995 / HD RA, 25 September 1995 - 26 July 2000 / HD The applicant's service record reflects he had previously served an additional 2 months and 1 day on active duty, however the period of service is not in the service record. e. Overseas Service / Combat Service: Germany, Korea, SWA / Iraq (28 April 2006 - 12 November 2006 / 10 August 2010 - 21 February 2011) f. Awards and Decorations: ICM-2CS, MSM-2, ARCOM-4, AAM-4, AGCM-6, NDSM-2, GWOTSM, KDSM, HSM, NCOPDR-3, OSR-4 g. Performance Ratings: December 1999 - September 2002 / Among The Best October 2002 - May 2005 / Among The Best June 2005 - February 2006 / Among The Best 1 March 2006 - 31 October 2006 / Fully Capable 1 November 2006 - 30 January 2009 / Among the Best 31 January 2009 - 5 March 2010 / Among the Best 6 March 2010 - 22 February 2011 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial as described in the preceding paragraph 3c. i. Lost Time / Mode of Return: 290 days (CMA, 22 February - 9 December 2011) / Released from CMA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; VA Decision letter; three character statements; Request for clemency; and, Retirement calculation letter. 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 3, Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the VA, determined that his character of service for the period under review was considered honorable; and therefore, is entitled to all benefits administered by the VA. The applicant submits a copy of VA decision letter and his request for clemency in support of his contention. However, Chapter 3, Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. The applicant has provided no evidence to reflect that the regulatory process was not followed. Further, eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good performance while serving in the Army; however, the character reference statements were considered by convening authority at the time of the court- martial. As such, none of these statements 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 16 June 2017, 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20150018261 5