1. Applicant’s Name: a. Application Date: 20 July 2015 b. Date Received: 21 April 2016 c. Counsel: Yes 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 reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant’s request is based on propriety and equity. Both the allegations against the applicant that led to his discharge were manufactured and later deemed incredible by the applicant’s command and those who knew the parties involved. Upon redeployment, the applicant required medical treatment for his shoulder and was placed in a medical hold unit. While receiving treatment, he developed behavioral health issues, including alcohol abuse, for which he self-referred in ASAP. He began treatment in a Behavioral Health Clinic and was diagnosed with PTSD, Major Depressive Disorder, and Alcohol Abuse. Although a UOTH was a disqualifying factor, VA has also granted the applicant 100 percent disability due to his PTSD. The applicant did not engage in any indecent acts; therefore, a characterization of UOTH is unwarranted, and an upgrade to honorable or general (Under Honorable conditions) would allow him to receive treatment for his mental health conditions and his right shoulder injury. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health conditions for the offenses. The Active Duty electronic medical records were reviewed. The applicant was granted 100 percent disability by VA for PTSD in 2010; however, VA provider acknowledged that PTSD diagnosis would not cause the types of acts against women that led to his separation in the military. In a personal appearance hearing conducted at Arlington, VA on 8 August 2016, 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: 22 January 2007 c. Separation Facts: (1) Charge Sheet and Preferral of Charge(s): Two separate DD Forms 458 (Charge Sheets), indicate the following charges were preferred on 23 February 2006, and additional charges were preferred on 11 April 2006: Charge I: Violation of Article 128, UCMJ, for assaulting SGT J by grabbing her throat on 28 January 2006. Charge II; five specifications of Violations of Article 134, UCMJ, for two incidents of committing an indecent assault upon SGT J on 28 January 2006; willfully and wrongfully holding SGT J while committing indecent act against her will on 28 January 2006; committing indecent assault upon Ms. W on 1 October 2005; and communicating a threat towards Ms. W on 1 October 2005. Additional Charge I, Violation of Article 92, UCMJ, two specifications of violating a lawful regulation by having an inappropriate relationship with CPT H and CPT R between 25 April 2005 and 30 April 2005. Additional Charge II, Violation of Article 107, UCMJ, for making a false official statement on 26 February 2006. Additional Charge III, two specifications of Violations of Article 134, UCMJ, wrongfully having sexual intercourse with CPT H and CPT R between 25 April 2005 and 30 April 2005, and committing indecent acts upon CPT H and CPT R between 25 April 2005 and 30 April 2005. (2) Basis for Separation: Pursuant to the applicant’s request for discharge in lieu of trial by court-martial under the provisions of AR 635-200, Chapter 10. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 10 July 2006 (5) Administrative Separation Board: None (6) Separation Decision Date/Characterization: 20 October 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 7 December 2003 / 545 days, pursuant to Orders for Active Duty b. Age at Enlistment/Education/GT Score: 19 / HS Graduate / 124 c. Highest Grade Achieved/MOS/Total Service: E-5 / 88M10, Motor Transport Operator and 25U10, Signal Support System Specialist / 12 years, 9 months, 1 day d. Prior Service/Characterizations: ARNG, 22 April 1994 – 28 August 1994 / NA           IADT, 29 August 1994 – 24 March 1995 / HD           ARNG, 25 March 1995 – 6 December 2003 / NA          (Concurrent Service) e. Overseas Service/Combat Service: SWA / (Iraq (29 January 2004 – 1 February 2005) f. Awards and Decorations: ARCOM-V; AAM-2; ARCAM-4; NDSM-2; ICM; GWTSM; AFRMM; ASR; OSR g. Performance Ratings: December 2003 – November 2004, Fully Capable h. Disciplinary Action(s)/Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: Applicant’s submitted evidence, as follows: Letter, dated 25 October 2009, rendered by a licensed social worker, indicates the applicant was diagnosed with PTSD, Major Depressive Disorder, and Alcohol Abuse, and was provided psychotherapy by the social worker. VA decision letter, dated 29 January 2015, and VA Rating Decision, dated 28 January 2015, indicates the applicant was granted 100 percent disability for his PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 20 July 2015; DD Form 214; attorney-authored petition; social worker’s letter, dated 25 October 2009; page 2 of a sworn statement; defense counsel statement, dated 7 November 2010; three CID Laboratory letters, dated 30 March 2006, 28 February 2006, and 24 March 2006; VA letter, dated 8 November 2014; Physical Profile, dated 18 November 2005; Article 32 Investigation summarized proceedings pages 7, 19, and 20-21; 3 sworn statements, dated 9 February 2006, 30 January 2006, and 6 February 2006; VA appeal, dated 6 November 2014; VA decision letter, dated 29 January 2015; VA Rating Decision, dated 28 January 2015; VA Examination Consult, dated 13 January 2015; Psychological Review, dated 26 August 2014; and medical record, an addendum, dated 27 August 2010 through 19 August 2010. Additional evidence: Supporting statement, undated, rendered by a licensed clinical social worker. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 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 reason for his discharge. The applicant’s record of service, and the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date. The applicant’s contentions regarding the propriety and equity of his discharge were carefully considered. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant’s and his supporting statements alone do not overcome the government’s presumption of regularity. The applicant’s contentions regarding his behavioral health issues after his deployments, and the subsequent diagnosis of PTSD were carefully considered. A careful review of the applicant’s record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. 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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional documents: 1. Letter from CPT P. – 2 pages 2. Letters from CSM G. – 1 page 3. Letter from C. T. W. – 5 pages 4. Letter from S. P.r – 2 pages 5. Letter from CPT C. – 1 page b. The applicant presented the following additional contention: Change RE-Code c. Witness: Yes (spouse) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 8 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: 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: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable 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 OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150014703 6