1. Applicant’s Name: a. Application Date: 9 November 2015 b. Date Received: 20 November 2015 b. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests through legal counsel an upgrade of his under other than honorable conditions discharge to honorable, a change to his narrative reason for discharge and a change to his reentry eligibility (RE) code. The applicant states, in effect, he has goals to exceed at his job and is unable to further his career with more growth opportunities due to his undesirable discharge. The applicant seeks relief contending, in effect, his discharge was the result of an atypical favorability that the cadre and fellow Soldiers held against him after discovering he was bisexual. He found himself facing serious harassment, discrimination, mental distress, threats of physical harm, and a severely toxic environment during basic training, which heavily detracted from allowing him to fully and properly participate. He contends he was the target of much physical aggression, as a number of individuals from within his original platoon attempted to physically assault him. He faced a constant and severe threat on a daily basis all throughout his time in basic training. The applicant also contends he suffered with chronic Coccydynia which affected his running and sitting considerably and that he was not allowed to seek treatment by his Drill Sergeants. Because of a fear for his life, safety, welfare, and his mental and physical health the applicant made a decision to go AWOL. Per the Board's Medical Officer, based on the information available for review at the time, the applicant has no mitigating medical or behavioral health condition(s) for the offense which led to his separation form the Army. The Active Duty electronic medical records were reviewed. In a records review conducted at Arlington, VA on 20 June 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the testimony and available evidence within the case file presented a perception of discrimination and a hostile organizational climate due to the applicant’s sexual orientation. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions and a change to the narrative reason for separation to Secretarial Authority. This action entails a change to the reentry eligibility (RE) code to 1. This action entails restoration of grade to E-3/PFC. (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: 21 August 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: On 17 July 2014, charges were preferred (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet, which indicates the applicant was charged with going AWOL from 16 May 2014 until his return on 16 July 2014. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 17 July 2014, the applicant consulted with legal counsel and voluntarily requested discharge in lieu of trial by court-martial (5) Administrative Separation Board: N/A (6) Separation Decision Date/Characterization: 15 August 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 28 January 2014 / 4 years and 16 weeks b. Age at Enlistment/Education/GT Score: 21 / 15 years / 120 c. Highest Grade Achieved/MOS/Total Service: E-3 / None / 4 months and 24 days d. Prior Service/Characterizations: None e. Overseas Service/Combat Service: None f. Awards and Decorations: None g. Performance Ratings: N/A h. Disciplinary Action(s)/Evidentiary Record: i. Lost Time: The applicant’s record of service indicates 61 days of time lost for going AWOL from 16 May 2014 until his return on 16 July 2014. j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293, dated 9 November 2015; exhibits B-G (DD Form 149, dated 9 November; DD Form 214, dated 21 August 2014; upgrade brief; diagnosis of chronic Coccydynia; letters of recommendation; and a copy of his resume. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, between 2010 to present he has received numerous recommendation letters that support his application into various educational programs at Middlebury College and at Cornell University. 7. REGULATORY CITATION(S): Army Regulation 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. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 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, by implication provided the same guidance to the Service Discharge Review Boards whose decisions are reviewable by the Service Correction Boards. That memorandum provided PTSD or PTSD-related conditions "will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service." However, the memorandum also states, "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 the 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." 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 "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. 8. DISCUSSION OF FACT(S): The applicant requests through legal counsel an upgrade of his under other than honorable conditions discharge to honorable, a change to his narrative reason for discharge and a changed to his RE code. The applicant’s record of service, the documents and the issues submitted with the application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of and 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 and valor; and it did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge. The applicant requested a change to his narrative reason for the discharge and a change to his RE code. However, the appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged in lieu of trial by court-martial is “KFS” and the RE code is 4. The regulation further stipulates that no deviation is authorized. The applicant seeks relief, contending that his discharge was the result of an atypical favorability that the cadre and fellow Soldiers held against him after discovering he was bisexual. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was the result of him being bisexual. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. Also, the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 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 character of the applicant’s discharge is commensurate with her overall service record. 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 document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents. b. The applicant presented the following additional contention: Change RE-Code c. Witness(es)/Observer(s): None 10. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 20 June 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the testimony and available evidence within the case file presented a perception of discrimination and a hostile organizational climate due to the applicant’s sexual orientation. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails a change to the reentry eligibility (RE) code to 1. This action entails restoration of grade to E-3/PFC. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General (Under Honorable Conditions) c. Change Reason to: Secretarial Authority d. Change SPD/RE Code to: JFF/RE-Code to 1 e. Restore (Restoration of) Grade to: E-3/PFC 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 AR20150018345 5