1. Applicant's Name: a. Application Date: 5 April 2016 b. Date Received: 11 April 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 and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, at the time, he was an out of the closet homosexual. He was depressed and started having bipolar tendencies. He believes he was persecuted and pushed out the easiest way possible. As a gay man, he believes that he was humiliated by the Army, called names by his peers and his chain of command, and made fun of because he had a mental disorder, which he developed while he was stationed in Korea. The applicant believes that his discharge was geared by his sexual orientation as the records reflect his first sergeant was discharged slightly after the applicant. Another sergeant later committed suicide. 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 and revealed diagnoses of an Adjustment Disorder and Alcohol Abuse. Medical note dated 12 April 2008 indicated the applicant was seen in the ER for agitation and homicidal ideation to hurt others. He reported feeling upset but would not elaborate with provider. There was no documentation provided to support his contention regarding depression, bipolar tendencies, sexual orientation, or mistreatment from others. In a records review conducted at Arlington, VA on 31 May 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) 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: 18 July 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: DD Form 458 (Charge Sheet), dated 21 June 2008, reflects the applicant was charged with violation of the UCMJ, Articles 91, 108, 128, and 134. (2) Basis for Separation: The applicant was informed of the following reasons: Charge I: Violation of the UCMJ, Article 91, Insubordinate conduct towards a noncommissioned officer (with two specifications) Charge II: Violation of the UCMJ, Article 108, Damage to military property Charge III: Violation of the UCMJ, Article 128, Assault (with three specifications) Charge IV: Violation of the UCMJ, Article 134, Disorderly conduct, drunkenness (with two specifications) (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 27 June 2008 (5) Separation Decision Date/Characterization: 9 July 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 April 2007 / NIF b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A10, Human Resources Specialist / 1 year, 3 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, GWOTSM, KDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in paragraph 3c(2). Report of result of Trial, reflects the applicant was tried in a Summary Court-Martial on 28 May 2008. The applicant was charged with 16 specifications. The summary of offenses, pleas and findings: Violation of Article 86, Failure to report: On 3 March 2008; guilty, inconsistent with the plea; On 14 March 2008; guilty, inconsistent with the plea; On 19 March 2008; guilty, inconsistent with the plea; and, On 2 May 2008; guilty, inconsistent with the plea. Violation of Article 89, Disrespect toward a commission officer on divers occasion between 12 April and 17 May 2008: Dismissed. Violation of Article 91, Disobeyed a lawful order: On 11 April 2008; guilty, inconsistent with the plea; On 11 April 2008; not guilty, consistent with the plea; and, On 17 May 2008; Dismissed. Violation of Article 92, Violated a lawful general order: On 18 May 2008 (x2); guilty, inconsistent with the plea; and, On 11 April 2008; not guilty, consistent with the plea. Violation of Article 107, False official statement: On 18 May 2008; guilty, inconsistent with the plea. Violation of Article 108, Damaging military property: On 18 May 2008; guilty, inconsistent with the plea. Violation of Article 128, Assault: On 18 May 2008; guilty, inconsistent with the plea. Sentence: Reduction to E-1; forfeiture $1058 pay; and, confinement for 30 days. Numerous Developmental Counseling Forms for failing to obey a direct order; issue a direct order; revocation of off post pass privileges; not allowed to consume alcohol; not to enter establishments which serve alcohol; disrespect toward a noncommissioned officer; disrespect toward an officer; failure to obey order or regulation; assault; poor performance; and, missing movement. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 2648; and SGLV Form 8286. 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason change. The applicant's record of service, 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. He believes he was persecuted and pushed out the easiest way possible because he was openly gay. However, 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 his overall service record. Further, the applicant voluntarily requested to be discharged in lieu of court-martial. The applicant contends that he was harrased and discriminated by members of his chain of command; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends was depressed and started having bipolar tendencies. However, the service record contains no evidence of a diagnosis for the condition and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 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 31 May 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 a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change f. Restore (Restoration of) Grade to: 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 AR20160007568 5