1. Applicant's Name: a. Application Date: 20 November 2015 b. Date Received: 23 November 2015 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a change to the narrative for separation. The applicant seeks relief contending, in effect, procedural errors and injustices occurred during the separation process. The reason for his separation was due to a police report; there was no evidence or verdict stating he had been found guilty of charges or what the police indicated. The police report is not the finding authority to determine allegations. The applicant contends that he served honorably for 11 years and wished to leave the Army on his own accord amicably. Per the Board's Medical Officer, based on the information available for review at the time, there are not mitigating Behavioral Health conditions for the offenses leading to the applicant's separation from the Army. The applicant was seen several times by Behavioral Health while on Active Duty. Presented with symptoms of depression, panic and poor sleep with occasional nightmares related to combat experiences. No suicidal or homicidal ideation reported. His symptoms did not meet full criteria for PTSD. Diagnoses listed in AHLTA include Occupational Problem, Partner Relational Problem, Chronic Adjustment Disorder with Depressed Mood, Adjustment Disorder with Anxiety and Depressed Mood. VA medical record indicates he is 40 percent service-connected. There is no VA generated problem list (only the AHLTA problem list) and there are not VA generated medical progress note. Only note in VA medical record states applicant has no OIF or OEF service. In a records review conducted at Arlington, VA on 31 March 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: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 29 September 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 August 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 14 July 2014, violated TRADOC Regulation 350-6, Enlisted Initial Entry Training Policies and Administration, dated 7 November 2013, by engaging in trainee abuse. Specifically, he used improper and unprofessional language, for example, "dick rider, snitches, and get the fuck away," in the presence of training Warriors; Arrested on 14 July 2015 and charged with four counts of rape of a child based on a Petersburg Bureau of Police (PBP) investigation in which he confessed to having sexual intercourse with a minor. During the course of the PBP investigation; In possession of unauthorized U.S. Army property in his off-post residence; and, His acts of serious misconduct, both military and civilian, his retention on Active Duty would have an adverse impact on military discipline, good order, and morale. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 10 September 2015 (5) Administrative Separation Board: On 10 September 2009, the applicant was notified to appear before an administrative separation board and advised of his rights. On 17 September 2015, the applicant's military defense counsel, requested a delay in the Board proceedings, because he had just been made aware the applicant had a civilian defense counsel. On 21 September 2015, the applicant's defense requested a second delay, indicated that the defense could not prepare adequately before scheduled Board on 22 September 2015. On 23 September 2015, the Board president informed the applicant that the Board would convene on 26 September 2015. On 26 September 2015, the administrative separation board convened in the absence of the applicant and his military and civilian defense counsel. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 29 September 2015, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 29 September 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 March 2012 / 3 years / On 31 March 2012, the applicant extended his enlistment by six months, giving him a new ETS of 29 September 2015. b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92R1P 5W, Parachute Rigger / 11 years, 2 months, 10 days d. Prior Service / Characterizations: RA, 20 July 2004 to 11 April 2006 / HD RA, 12 April 2006 to 17 November 2010 / HD RA, 18 November 2010 to 29 March 2012 / HD (Note: The last two immediate reenlistments are inaccurately reflected on the DD Form 214, block 18, as "20101118 to 20121229" and "20121230 to 20150929.") e. Overseas Service / Combat Service: Italy, SWA / Afghanistan (18 May 2007 to 18 July 2008) f. Awards and Decorations: ACM-2CS, ARCOM-3, AAM-8, AGCM-3, NDSM, GWOTSM, HSM, ASR, OSR-2, NATOMDL g. Performance Ratings: RA, 1 October 2012 thru10 June 2012, Marginal RA, 11 June 2012 thru 10 June 2013, Fully Capable RA, 19 June 2013 thru 18 June 2014, Among The Best RA, 19 June 2014 thru 29 September 2015, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 7 November 2014, for violating a general regulation by wrongfully using extreme profanity toward Advanced Individual Training Soldiers (14 July 2014). The punishment was consisted of a forfeiture of $500 pay (suspended) and a written reprimand. Petersburg Bureau of Police (PBP), Supplemental Report, dated 14 July 2015, reflects the applicant turned himself in at Police Headquarters and was processed and incarcerated at Riverside Regional Jail. The report noted the offense of Forcible Rape. CID, Agent's Investigation Report, dated 20 July 2015, reflects the applicant was under investigation by the Petersburg Bureau of Police department for the offense of Rape of a Child. Law Enforcement Report-Final/Collateral, dated 19 August 2015, reflects an investigation by the PBP determined the applicant committed the offense of Forcible Rape when he forced a female to have sexual intercourse without her consent. The applicant turned himself in at the PBP and was subsequently arrested. FG Article 15, dated 27 August 2015, for wrongfully appropriate 57 M16/M4 Magazines, eight Blank Firing Adapters, one Rocket Propelled Grenade training aid, and one M72 Light Anti-Tank Weapon inert, the property of the U.S. Army (10 July 2015). The punishment consisted of a reduction to E-5 (suspended), forfeiture of $1,150 pay, extra duty for 45 days (suspended), and restriction for 45 days. Developmental Counseling Form for notification of intent to separate from service. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 31 August 2015, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with (Axis I) Adjustment Disorder with Mixed Anxiety and Depressed Mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 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. 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." "Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct." 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a change to the narrative for separation. 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 be retained on Active Duty. The applicant contends his discharge is improper because of the procedural errors that occurred during the separation process. The applicant provided a letter from his military defense counsel to support his contention. 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 with regards to the regulatory requirement, which allows 15 days for a service member to consult with counsel, the board president stated in memorandum, dated 29 September 2015, that he determined the 15 day notice was satisfied by holding the Board on Saturday, 26 September 2015. Based on the procedural history, he did not believe the applicant was unfairly prejudiced in any way and Defense had time to prepare for the hearing. The applicant contends his discharge was unjust because there was no evidence or verdict stating he had been found guilty of charges or what the police indicated. The police report is not the finding authority to determine allegations. However, the evidence of the record reflects the applicant was arrested and incarcerated by the PBP. The service record does not contain any evidence, and the applicant has not provided any evidence that the charges for which the applicant was arrested have been dismissed. Further, the applicant was notified he was being separated for several acts of misconduct, not just the misconduct the applicant contests. The service record reflects the applicant received two FG Article 15s for acts of misconduct, which served in part, as the basis for the applicant's discharge. 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 under other than honorable conditions. 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 contends that he had good service which included a combat tour. 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 is to be commended for his accomplishments. 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 31 March 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 a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade 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 AR20160000380 4