IN THE CASE OF: BOARD DATE: 12 January 2022 DOCKET NUMBER: AR20210009282 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision dated 16 December 2020 * Northwest Christian University Bachelor of Science in Business Administration * Bushnell University Master of Business Administration in Management FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his discharge was inequitable because it was based on one (1) isolated incident in 20 years of service with no other adverse action. Post-Traumatic Stress Disorder (PTSD) was a leading cause of the incident. He has provided proof of PTSD and being fully disabled now because of it. 3. On 4 April 1996, the applicant enlisted in the Regular Army. He immediately reenlisted on multiple occasions. The highest rank he attained was staff sergeant (E-6). He served twice in Iraq and Afghanistan totaling 4 deployments. 4. The applicant s record contains a Police Department Report that states, in pertinent part, on 12 May 2014, the applicant s daughter reported that she scared of him because he touched her inappropriately one night. The applicant reached down the pajama pants of his daughter and proceeded to touch her vagina and buttocks. He also reached up the child s (his daughter) shirt and proceeded to touch her breasts. 5. On 19 August 2014, the applicant s commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12c, for commission of a serious offense. The reasons for his proposed action was: The applicant committed sexual assault of a child under the age of 16 years old. On 12 May 2014, he reached down the pajama pants of his child and proceeded to touch her vagina and buttocks. Then the applicant reached up the child's shirt and proceeded to touch her breasts. The commander informed the applicant of his rights and the applicant acknowledged receipt of the separation notice. a. Legal counsel advised the applicant of the basis for his contemplated separation and its effects, the rights available to him, and of the effect of any action taken by him in waiving his rights. The applicant requested consideration of his case by an administrative separation board (ASB) and to personally appear before the ASB. The applicant elected to submit statements in his own behalf (not available), and indicated he was not sure if he believed that he suffered from PTSD or Traumatic Brain Injury as a result of deployment overseas in support of a contingency operation during the previous 24 months. b. The commander formally recommended the applicant for discharged, and the intermediate commander recommended approval of the separation action with the issuance of an UOTHC character of service. 6. On 20 October 2014, District Court documents show the applicant and District Attorney entered into a plea agreement. The applicant agreed to plead guilty to Count 2 of the Information, Sexual Assault on a Child by One in a Position of Trust, a Class 3 Felony. The applicant agreed to comply with the terms and conditions of the deferred judgement and sentence incorporated in the plea agreement. The Stipulation for Deferred Judgement and Sentence and Court Order shows the District Attorney and the applicant both personally and by his attorney, jointly agreed and stipulated that the Court shall defer sentencing on such count for a period 5 years. The signed plea paperwork was filed with the court as good faith to the agreement. 7. On 23 October 2014, the applicant was notified to appear before an Administrative Separation Board and advised of his rights. 8. On 18 December 2014, the Administrative Separation Board convened and heard evidence. Legal counsel represented the applicant at the hearing. After several hours of deliberation, the Board elected to separate the applicant with an Other Than Honorable Discharge. The Administrative Separation Board verbatim findings and recommendations state: (1) In the board proceedings concerning the applicant, the board carefully considered the evidence before it and finds per each individual offense to support the basis for separation that, the applicant did commit a serious offense on 12 May 2014, to wit: sexual assault of a child under the age of 16 years old by reaching down the pajama pants of his child and proceeding to touch her vagina and buttocks and sexual assault of a child under the age of 16 years old by and by reaching up the child's shirt and proceeding to touch her breasts. (2) This finding does warrant the separation of the applicant. "In view of the above findings, the Board Members, by majority decision recommends that the applicant receive an Under Other Than Honorable Conditions." 9. On 14 January 2015, the applicant s legal counsel that represented him at his ASB filed an appeal of the ASB findings based on the applicant s exemplary career and mitigated facts of the civilian case, as well as the lack of any conviction for which the civilian case would result. 10. On 10 March 2015, District Court documents show the applicant was sentenced to 5 years probation through the Sex Offender Intensive Supervision Program (SOISP). The applicant had to comply with the terms and conditions of his probation. The court approved the request to transfer to the state of Oregon; he had to enroll in an offense specific treatment; register as a sex offender; have no contact with anyone under the age of 18 unless given permission by probation; pay all court costs, sex offender surcharge, any special advocate fees, and assessment fees; complete drug and alcohol evaluation and follow all treatment recommendations. 11. On 26 April 2016, Headquarters, U.S. Army Garrison, Fort Carson, Colorado, issued Orders 117-0025 discharging the applicant on 3 May 2016. 12. The applicant s record did not contain a complete discharge packet; nevertheless, the DD Form 214 he signed for shows he was discharged on 3 May 2016 under the provisions of AR 635-200, paragraph 14-12c, based on misconduct (serious offense). He was given an under other than honorable conditions character of service. He had completed 20 years and 28 days of net active service this period. The applicant was awarded or authorized the: * Army Commendation Medal (5th award) * Army Achievement Medal (2nd award) * Army Good Conduct Medal (5th award) * Afghanistan Campaign Medal with 2 campaign stars (2nd award) * Meritorious Unit Commendation (3rd award) * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Noncommissioned Officer Professional Development Ribbon (2nd award) * Army Service Ribbon * Overseas Service Ribbon (5th award) * North Atlantic Treaty Organization (NATO) Medal 13. On 28 December 2017, the applicant and counsel petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 18 November 2020, the ADRB voted unanimously to deny the applicant and counsel s request for an upgrade of his discharge. The ADRB Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicated diagnoses of Adjustment Disorder with anxiety/Adjustment Disorder with anxiety and depressed mood/Adjustment Disorder with mixed emotional features; Alcohol Dependence; Anxiety Disorder NOS; Other Specified Family Circumstances; Sleep Disorder. The Department of Veterans Affairs (VA) had also diagnosed the applicant with PTSD. The applicant was 60 percent (%) service connected, 10% for PTSD. In summary, the applicant did not have a behavioral health (BH) diagnosis that was mitigating for the misconduct which led to separation from the Army. 14. In support of case to the Board, the applicant provided VA Rating Decision dated 16 December 2020, Bachelor of Science in Business Administration and Master of Business Administration in Management. The documents will be provided to the Board and Army Review Boards Agency medical staff for review and consideration. 15. Army Regulation 15 185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 16. 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. 17. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical consideration s and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under 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. b. PTSD is not a likely cause of premeditated misconduct. Corrections 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. 18. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 19. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 20. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates he was seen in the Army Substance Abuse Program (ASAP) on 12 Jun 2007 and diagnosed with Alcohol Dependence. On 15 Jun 2008, he was seen for insomnia while in theater and treated with Ambien. On 15 Aug 2008, he reported continued difficulty with sleep due to excessive thoughts at night ruminating over work tasks for the next day (NCOIC of DFAC at FOB Bernstein). On 6 Feb 2009, he sought medication for his insomnia. The psychiatrist noted symptoms of anxiety and depression but applicant asserted he didn t have a depressive illness and does not want to be treated for it. He just wanted medication for sleep. He was diagnosed with Adjustment Disorder with anxiety and depressed mood. On 2 Jun 2009, he was placed on Remeron and referred to ASAP. On 26 May 2010, he was diagnosed with insomnia while in theater and was prescribed Trazadone. On 6 Feb 2011, he reported complaints about how he is treated by command. He has been charged with being verbally abusive to a soldier and was removed from his position. He was diagnosed with Adjustment Disorder with Anxiety. On 11 Jan 2012, he reported problems with finances, medical, marital and occupational stressors. On 23 Jan 2012, he reported continued spousal issues but did not disclose specifics. The provider noted the applicant was evasive and invoked limits of confidentiality applicable to partner altercations/violence. He further stated that if he were to be referred to Family Advocacy Program (FAP), he would decline from cooperation and contact an attorney. He requested admission to the psychiatric ward because he needs time away from his wife and can t afford a room at the Landmark hotel. He was diagnosed with Adjustment Disorder with mixed emotional features and released with no duty limitations. On 13 Feb 2012, he was seen for a command directed behavioral health evaluation due to increasingly poor work performance, interpersonal conflict with his leadership, and report from his wife of marital conflict. He met retention standards but was referred for a medication evaluation, and recommendation for marital counseling. On 14 Feb 2012, he was given a refill of his insomnia medication. On 5 Mar 2014, he was seen at FAP for evaluation based on a command referral. The social worker recommended the applicant be placed in the barracks for a period of 2 weeks. He attended individual and group sessions in the FAP clinic from 14 Mar 2014 to 7 Apr 2015. On 8 Mar 2016, he was seen for a mental status evaluation due to a pending chapter separation. He did not meet diagnostic criteria for any psychiatric condition and met retention standards IAW AR 40-501. A review of JLV indicates the applicant received a service connected disability rating of 10% for PTSD effective 4 May 2016. His PTSD rating was increased to 100% effective 7 May 2020. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. PTSD is not a mitigating factor for sexual assault on a child. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, documents provided by the applicant and the review and conclusions of the advising official. The Board considered the frequency and nature of his misconduct and the reason for his separation. The Board concurred with the medical advisory opinion finding insufficient evidence of in- service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Base on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15 185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. The regulation also states: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under 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. b. PTSD is not a likely cause of premeditated misconduct. Corrections 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. 5. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. b. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009282 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1