1. Applicant's Name: a. Application Date: 22 April 2016 b. Date Received: 10 May 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, his discharge was improper because there was no evidence to show that an offense was committed. The evidence of proof that an offense was not committed was not allowed to be heard in the investigation process. The applicant contends that the CID report and findings did not justify any punishment, nor did it support Articles 92, 93, or 120 preferred charges. The applicant further contends that he was ill-advised by his defense counsel to opt for a discharge in lieu of a Court Martial, with the understanding that he was being recommended for a Summary Court Martial for a minor offense. However, according to the applicant, the procedure erroneously turned into a request for a punitive discharge. The applicant firmly believes that he should be exonerated of the wrongful charges that resulted in his under other than honorable discharge. In addition, the applicant is requesting that his characterization of service is upgraded to honorable, his rank reinstated to SFC/E-7, his time in service restored to 17 years and 4 months, and his discharge date adjusted to reflect the present date on the premise that he was wrongfully discharged under punitive procedures. Per the Board's Medical Officer, based on the information available for review at the time, the applicant did not have a mitigating medical or behavioral health conditions for the offenses. In summary, there is no nexus between a medical or behavioral health condition and the misconduct that led to an early separation. In a records review conducted at Arlington, VA on 6 December 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: In Lieu of Trial By Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 December 2014 c. Separation Facts: (1) DD Form 458 (Charge Sheet): dated 21 October 2014, reflects the following: Charge I: Violation of the UCMJ, Article 120 Charge II: Violation of the UCMJ, Article 93 Charge III: Violation of the UCMJ, Article 92 Charge IV: Violation of the UCMJ, Article 134 (2) Legal Consultation Date: NIF (3) Basis for Separation: NIF (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: 31 October 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 March 2007 / Indefinite b. Age at Enlistment / Education / GT Score: 33 / HS Graduate / 85 c. Highest Grade Achieved / MOS / Total Service: E-7 / 91B40, Wheeled Vehicle Mechanic / 20 years, 5 months d. Prior Service / Characterizations: USAR, 25 January 1994 to 28 February 1994 / NA IADT, 1 March 1994 to 19 August 1994 / NA USAR, 29 August 1994 to 3 December 2001 / HD USAR, 4 December 2001 to 8 March 2007 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (5 January 2004 to 17 April 2005) f. Awards and Decorations: AFRM W/20-YR SILVER HRGLS, ARCOM-2, AAM-5, AGCM-5, NDSM-2, GWOTEM, GWOTSM, NCOPDR-3, ASR, OSR, AFRMM g. Performance Ratings: March 2005 thru 24 November 2008, Among The Best (6) 24 November 2008 thru 28 November 2009, Fully Capable 24 December 2009 thru 30 May 2011, Among The Best (2) 1 June 2011 thru 4 December 2011, Fully Capable 5 December 2011 thru 7 July 2013, Among The Best (2) h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation-Initial, dated 21 July 2014, reflects the applicant was the subject of an investigation for abusive sexual contact (adult). U.S. Army Crime Records Center Memorandum, dated 22 October 2014, reflects an investigation established probable cause to believe that the applicant committed the offense of abusive sexual contact when he engaged in sexual contact with the victim without her consent, while assigned to Hilo, Hawaii. Commander's Report of Disciplinary or Administrative Action, Block 3 (Referral Information), reflects that on 4 November 2014, the Commander selected "No" for "Sexual Harassment" and "Yes" for "Action Taken." Block 4 (Action Taken), reflects the commander selected "Judicial Punishment, General Court Martial." In Block 5 (NJP/Court-Martial/Civilian Criminal Court Proceeding Outcome Proceeding Outcome), reads: Charged Offense: Abusive Sexual Contact (Adult) Plea: Pre-Trial Diversion Finding Offense: Abusive Sexual Contact (Adult) Trial/NJP Finding: Settlement i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with enclosures, which notably includes a partial copy of the applicant's case separation file. (Note: The applicant's spouse states in her letter that the applicant was diagnosed with PTSD in 2014; however, there is no evidence in the file to support such claim.) In response to the redacted CID Report that was forwarded to the applicant by CMD, the applicant submitted an additional letter that states the following points of contention: - he was denied due process when charges for a Summary Court Martial were preferred against him on 21 October 2014 by CPT X, to which he agreed to a separation in lieu of; however, the battalion commander changed the procedure to a General Court Martial without informing the applicant or affording him the opportunity to respond to the much more serious charges; - the redacted CID report confirms the applicant's claim regarding the charges preferred against him for a Summary Court Martial; and, - the CID report found only that there was probable cause that he had committed the offenses charged under Article 120. 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 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. Army policy states that although an honorable or general (under honorable conditions) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 his under other than honorable conditions discharge to honorable. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's contentions regarding his discharge being improper due to lack of evidence, the fact that the CID report and findings did not support Articles 92, 93, or 120 preferred charges, and the bad advice he received from his defense counsel to opt for a discharge in lieu of a Court Martial were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs. This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record. The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. The applicant requests that his time in service is restored to 17 years and 4 months and that his discharge date is adjusted to reflect the present date on the premise that he was wrongfully discharged under punitive procedures. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. Based on the available record, the discharge appears consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 6 December 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 AR20160009497 5