1. Applicant’s Name: a. Application Date: 27 April 2016 b. Date Received: 2 May 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. The applicant seeks relief contending, in effect, he believes the charges against him were untrue. He later found out there were two investigations. In the first investigation his name was not mentioned at all and in the following investigation his name was mentioned. Conveniently the first investigation was lost, even though it was supposed to be held for at least five years. Two days prior to the deadline to provide the missing investigation to the judge, the Army approved his chapter packet. He had submitted the Chapter 10 packet prior to this information coming to light and was unable to have his chapter request withdrawn. He only submitted the chapter 10 packet in order to protect his civilian career as a state corrections officer. He was hoping to put an end to the arduous year that followed the incident. He did not feel that the Army afforded him any options due to the current mindset of the military. He was removed from his career, which he is now fighting to get back; and, fighting all that went wrong with the decision he made. At the time, he was sent to another country and put on a work detail with lower enlisted Soldiers to do area beautification, clean trash from the road sides and clean up all the trashcans around the base. Though it was stated to him many times that this was not a punishment, he considered it to be punishment. Later, he was sent to another state to be on another detail, in which he had to wear only physical fitness uniforms, so nobody would ask him questions or wonder why an E-7 was working at the gym. He was all alone and was never given a voice for people to understand what he was going through. The incident which led to his discharge, happened in a room crowded with over 200 people. No one saw anything or tried to get their first sergeant, who was there. He believes this was grossly mishandled by his National Guard unit and the Army. He had 16 years of meritorious service before this one incident and after this incident was the same Soldier he had always been. He believes he could have been retrained or moved to a different unit. He was still a valuable asset to both the National Guard and the Army. To him, this was just an overkill. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had a behavioral health condition which was partially mitigating for some of the offenses which led to his discharge from the Army. The applicant has been rated 70% service connected for PTSD by the VA. PTSD is often associated with the use of substances to self-medicate. As such, the PTSD would be considered mitigating for the offense of drunk and disorderly conduct. It would not be considered mitigating for violating Article 93, Article 120 and Article 128 of the UCMJ. Both the military and the VA electronic medical records were reviewed. In a personal appearance hearing conducted at Arlington, VA on 7 November 2016, after a thorough review of the entire record and consideration of the medical officer’s opine, and by a majority vote, the Board determined that the applicant’s medical condition did not overcome the characterization of the applicant’s under other than honorable conditions discharge. Evidence submitted by the applicant reveals a post-service VA PTSD diagnosis, dated 20 September 2016. The applicant’s post-service PTSD diagnosis, although deemed partially mitigating for some of the applicant’s offenses by the board’s medical officer was not found to be sufficiently mitigating to warrant the applicant request for a discharge characterization upgrade. Therefore, 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: 6 November 2015 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 27 February 2015, the applicant was charged with: Violating Article 93, UCMJ, for maltreating SPC J, by touching her breasts, thigh and buttocks and asking her “Do you want to?” (9 December 2014) Violating Article 128, UCMJ, for touching SPC J, on the stomach with his hand (9 December 2014). Three specifications of violating Article 120, UCMJ, touching SPC J, without her consent (9 December 2014). Violating Article 134, UCMJ, for being drunk and disorderly (9 December 2014). (2) Legal Consultation Date: 15 October 2015 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, In Lieu of Trial by Court-Martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 2 November 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 June 2014 (AGR OAD) / 400 days b. Age at Enlistment / Education / GT Score: 36 / Bachelor’s Degree / 111 c. Highest Grade Achieved / MOS / Total Service: E-7 / 11B10, Infantryman / 16 years, 10 months, 8 days d. Prior Service / Characterizations: RA, 30 December 1998 to 27 April 2002 / HD ARNG, 28 April 2002 to 17 May 2004 / NA AD, 18 May 2004 to 1 March 2005 / HD ARNG, 2 March 2005 to 31 October 2006 / NA AD, 1 November 2006 to 22 September 2007 / NIF ARNG, 23 September 2007 to 17 June 2008 / NA AD, 18 June 2008 to 4 August 2009 / HD ARNG, 5 August 2009 to 15 October 2011 / NA AD, 16 October 2011 to 5 November 2012 / HD ARNG, 6 November 2012 to 15 June 2014 / NA e. Overseas Service / Combat Service: Egypt, Kuwait, Qatar, SWA / Iraq (22 September 2008 - 1 June 2009) f. Awards and Decorations: ICM-2CS, JSCM, ARCOM-3, AAM-2, AGCM, NDSM, GWOTEM, GWOTSM, NCOPDR-3, ASR, OSR, ARCOTR, AFRM M-Device, MFOM g. Performance Ratings: (Evaluations for the last five years prior to discharge and as listed in the applicant’s official military personnel file (OMPF)) 19 September 2008 thru 15 June 2009, Among The Best 1 October 2009 thru 30 September 2010, Among The Best 28 September 2010 thru 27 September 2011, Among The Best 1 October 2010 thru 30 September 2011, Among The Best 28 September 2011 thru 27 September 2012, Fully Capable 28 September 2012 thru 27 September 2013, Among The Best 28 September 2013 thru 15 June 2014, Among The Best h. Disciplinary Action(s) / Evidentiary Record: Agent’s Investigation Report, reflects the applicant was investigated for possible sexual assault. The special agent investigating the applicant, coordinated with the command judge advocate, who opined there was probable cause to believe the applicant committed the offense of abusive sexual contact. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with his 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge 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 be retained on active duty. 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 third party statements provided with the application speak highly of the applicant’s performance. They all recognize his professionalism good conduct either before his discharge or after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant contends that two investigations were conducted into the allegations against him, but the first investigation, which did not even mention him, conveniently disappeared when he needed to present it to the judge. 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. The applicant contends that he had good service which included a combat tour. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were considered. The applicant is to be commended for his accomplishments. The applicant contends the incident that caused his discharge was the only one in his entire Army career. 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 applicant contends he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, the applicant’s separation was based on his request to be discharged in lieu of trial by court-martial. The applicant requests a change to the characterization of his service in order to rejoin the Army. However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 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: VA PTSD diagnosis – 2 pages b. The applicant presented no additional contentions. c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 7 November 2016, after a thorough review of the entire record and consideration of the medical officer’s opine, and by a majority vote, the Board determined that the applicant’s medical condition did not overcome the characterization of the applicant’s under other than honorable conditions discharge. Evidence submitted by the applicant reveals a post-service VA PTSD diagnosis, dated 20 September 2016. The applicant’s post-service PTSD diagnosis, although deemed partially mitigating for some of the applicant’s offenses by the board’s medical officer was not found to be sufficiently mitigating to warrant the applicant request for a discharge characterization upgrade. Therefore, 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 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 AR20160009259 6