1. Applicant's Name: a. Application Date: 11 May 2016 b. Date Received: 17 May 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, that he is not guilty of the crime of rape, was not convicted in a civilian court, and he never received any type of punishment. He said his accuser never said "no," he did not force himself onto her, and the only evidence given was her sworn statement. He waited two years for the investigation to finalize, was not in any trouble during that time, and believes that with his six years of service and a combat tour, he does not deserve a UOTH characterization. Per the Board's Medical Officer, based on the information available for review at the time, the Applicant has an AHLTA diagnoses of Adjustment Disorder with depressed Mood, Marital Problem, Military Combat Stress Reaction, Occupational Problem, Other Family Circumstances (10 FAP visits) and Partner Relational Problem. The applicant had a Mental Status Exam (MSE) on 22 July 2017. The examiner cleared him for an administrative discharge and judged him to meet Army Medical Retention Standards. The examiner addressed the applicant's elevated PCL score (a measure of PTSD symptoms) and concluded that although it was positive, the applicant did not meet full criteria for a diagnosis of PTSD, but did meet one for Military Combat Stress Response. An AHLTA note on 31 March 2014 mentioned a domestic violence referral to FAP because of an incident with his significant other. JLV did not show the applicant as having VA disability percentages or VA visits. There is insufficient evidence to mitigate the misconduct, especially in light of Army conclusion of his being involved in the rape of a female civilian. In a records review conducted at Arlington, VA on 15 September 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry eligibility (RE) code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. (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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 19 April 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 July 2015 (2) Basis for Separation: The applicant was informed of the following reasons: he raped Ms. X (on or about 6 March 2014) and also stole gift cards totaling less than $500.00 and $113.00 in cash ; and, he lied to a Military Police Officer when he said, "no, I did not steal anything from her" or words to that effect (on or about 23 January 2014). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 July 2015 (5) Administrative Separation Board: On 8 February 2016, the applicant was notified to appear before an Administrative Separation Board and advised of his rights. On 16 February 2016, the Administrative Separation Board convened and the applicant appeared with counsel. The Board found that the allegation of raping Ms. X was supported by a preponderance of the evidence, warranted separation, and recommended that that the applicant be discharged with a characterization of service of under other than honorable conditions. On 17 March 2016, 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: 19 April 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 June 2012 / NIF b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 6 years, 2 months, 14 days d. Prior Service / Characterizations: RA, 2 February 2010 to 20 June 2012 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (15 April 2012 to 15 January 2013) f. Awards and Decorations: ACM-2CS, ARCOM, AAM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 26 January 2014, reflects the applicant was the subject of an investigation for larceny of private funds (Article 121, UCMJ). CID Report of Investigation, dated 15 September 2015, reflects the applicant committed the offense of sexual assault when he carried out nonconsensual sexual acts with Ms. X Report of Proceedings by Investigating Officer/Board of Officers reflect that on 16 February 2016 an Administrative Separation Board convened to determine if the applicant should be separated from the Army prior to the expiration of his current term of service, under the provisions of AR 635-200, Chapter 14-12c for Commission of a Serious Offense. In view of the findings, the Board recommended the applicant be separated from the U.S. Army with a characterization service of Under Other Than Honorable Conditions. Report of Behavioral Health Evaluation, dated 2 July 2015, reflects the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. i. Lost Time / Mode of Return: 3 days (Civil Confinement, 4 to 7 January 2014) / released from confinement j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 2 July 2015, reflects the applicant had a clear and normal thought process and was mentally responsible. The applicant was diagnosed with (Axis I) Military Combat Stress Response. There were no findings of a behavioral health nature that would necessitate precluding administrative separation. Further noting that the applicant completed a brief assessment for TBl, but did not meet criteria for a TBI. He also completed a PTSD assessment and, though his screening score was positive, he did not meet criteria for a diagnosis of PTSD IAW DSM-IV- TR/DSM-V or OTSG MEDCOM Policy Memo 12-035. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214. 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. 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 characterization to honorable. 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 have been retained on Active Duty. The applicant contends that he is not guilty of the crime of rape, was not convicted in a civilian court, and he never received any type of punishment. He said his accuser never said "no," he did not force himself onto her, and the only evidence given was her sworn statement. However, the applicant was afforded full administrative due process, he was represented by counsel, and was the subject of an administrative discharge hearing, which returned a finding that substantiated the allegation against him. He further states that he waited two years for the investigation to finalize, was not in any trouble during that time, and believes that with his six years of service and a combat tour, he does not deserve a UOTH characterization. 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. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of Misconduct (Serious Offense). Soldiers processed for Misconduct (Serious Offense) will be assigned an SPD Code of JKQ and an RE Code of 3. 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 15 September 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry eligibility (RE) code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214: Yes 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 to SPD / Change RE code to 3 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 AR20160009559 1