1. Applicant's Name: a. Application Date: 25 February 2016 b. Date Received: 14 March 2016 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 seeks relief contending, in effect, he planned to attend college with his Post 9/11 GI Bill. He learned that the Army could not prosecute him two years after the incident and he never inquired or considered the possibility. He never drove drunk or intended to do so. He deployed with more than $43 million worth of equipment hand receipted to him, he returned a year later without any losses, accountability issues or errors; and he receive an AGCM and an ARCOM. He was never served notice of failing any urinalysis in his life and he never used marijuana. He cannot believe that the Army would put him through such an ordeal and deliver such inequitable punishment. He should not have been discharged, that act in no way warranted a discharge under other than honorable conditions. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was not diagnosed with PTSD, but reported some PTSD like symptoms. However, due to the nature of the misconduct, PTSD is not a likely cause of the misconduct. In a records review conducted at Arlington, VA on 7 March 2018, 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 14 June 2013 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 22 February 2013 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he wrongfully used marijuana x2 between (29 October 2012 and 26 November 2012 and 13 November 2011 and 13 December 2012); he was convicted of operating a motor vehicle while intoxicated near Watertown NY (17 January 2013); and he caused Ms. X., to engage in a sexual act, by penetrating her vulva with his penis, by placing her in fear that she or her husband would be subjected to death or grievous bodily harm (21 March 2013). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 22 February 2013 (5) Administrative Separation Board: The applicant requested personal appearance before an administrative separation board. The applicant's case was referred to an administrative separation board. On 23 April 2013, the applicant was notified to appear before an administrative separation board and advised of his rights. On 9 May 2013, the administrative separation board convened. The applicant appeared with counsel. The board recommended the applicant be discharged with issuance of a character of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 29 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 June 2010 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 28 years / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 8 years, 7 months, 13 days d. Prior Service / Characterizations: USAR, 10 June 2002 to 27 August 2008 / NA RA, 28 August 2002 to 2 March 2004 / GD (Break In Service) ARNG, 17 July 2007 to 23 June 2010 / GD e. Overseas Service / Combat Service: SWA / Kuwait / Iraq, 14 February 2003 to 11 December 2003 / Afghanistan, 20 March 2011 to 12 February 2012 f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, ICM-2CS, ACM-2CS, GWOTSM, ASR, OSR-2, NATO MDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 14 January 2011, relates that the applicant was under investigation for aggravated driving while intoxicated, driving 50 miles per hour in a 30 mph zone, operating out of class, off post. The record contains two positive urinalysis tests coded IR (Inspection Random), dated 26 November 2012 and 13 December 2012, both for THC. FG Article 15 dated, 29 January 2013, for wrongful use of marijuana a schedule I controlled substance between 29 October 2012 and 26 November 2012; reduction to PVT / E-1 (suspended), forfeiture of $758 pay for two months (suspended), extra duty for 45 days; restriction to the limits of a 25*mile radius of Fort Drum for 45 days. CID Reports of Investigation, dated 25 January 2013 and 6 February 2013, revealed that the applicant was under investigation for wrongful use of marijuana, respectively. The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 7 February 2013, relates that the applicant had an Axis I diagnosis of an adjustment disorder with anxiety. He was screened for PTSD and mTBI; the PTSD screen was negative and the mTBI screen was positive. He was referred for a comprehensive mTBI evaluation. The applicant met medical retention standards per AR 40-501. He was cleared for administrative separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); issues continuation (three pages); administrative separation board proceedings (five pages); City Court of Watertown, New York court document; State Of New York, Certificate of Relief from Disabilities; prime for life certificate; Jefferson County Probation Department document; sworn affidavit of Ms. X; affirmation of MR. Esq. (four pages); DD Form 214; iPERMS Record; and a prior records review, AR20060009055 (six pages). 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, 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. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 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 record confirms 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. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting a general (under honorable conditions) or an honorable discharge at the time of separation. 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 requested a change to the narrative reason for separation. 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, misconduct (serious offense). The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, he planned to attend college with his Post 9/11 GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 applicant further contends, he learned that the Army could not prosecute him two years after the incident and he never inquired or considered the possibility; and he cannot believe that the Army would put him through such an ordeal and deliver such inequitable punishment. 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 applicant also contends, he never drove drunk or intended to do so. The record of evidence shows that the applicant was charged with aggravated driving while intoxicated with a blood alcohol content of .18 or higher in Watertown, NY on 14 January 2011. The record further shows he pleaded guilty on 17 January 2011 and was sentenced to a $500 fine plus a $395 surcharge, his license was revoked, DDP mandatory and prohibited from driving without IID installed for six months. The applicant additionally contends, he deployed with more than $43 million worth of equipment hand receipted to him, he returned a year later without any losses, accountability issues or errors; and he receive an AGCM and an ARCOM. 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. Furthermore, the applicant contends, he was never served notice of failing any urinalysis in his life and he never used marijuana. The record of evidence shows that the applicant failed two urinalysis tests and received punishment under UCMJ for wrongful use of marijuana. Moreover, the applicant contends, he should not have been discharged, that act in no way warranted a discharge under other than honorable conditions. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 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 7 March 2018, 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 AR20160005893 1