1. Applicant's Name: a. Application Date: 10 June 2016 b. Date Received: 27 June 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. The applicant seeks relief contending, in effect, he was in the process of being medically boarded out of the military. Later, his separation was changed to a commission of a serious offense and he was discharged one day prior to his expiration term of service. He states, the military JAG officer was in the court room when he pled not guilty, but he still received an under other than honorable conditions discharge, which he believes was not justified. Per the Board's Medical Officer, based on the information available for review at the time, case file, AHLTA and JLV reviewed. AHLTA notes indicate applicant had the following diagnosis while on active duty: Chronic PTSD, Concussion with no LOC, Major Depressive Disorder, Sleep Apnea and Adjustment Disorder. AHLTA notes document extensive Behavioral Health involvement. Applicant had head injury in 2011 when 2 bed risers fell on his unprotected head. He reported no LOC but did report feeling dazed and confused for a brief time. Applicant was diagnosed with PTSD in Sep 2013. He reported symptoms of irritability, hyperarousal, insomnia, and intrusive memories. He reported a history of physical and verbal abuse as a child while being raised by an alcoholic mother who was married 4-5 times. Applicant also reported to mental health that he and his two brothers were kidnapped and sexually assaulted. After the applicant was charged with sexual assault he tried to kill himself by asphyxiation with carbon monoxide. After this aborted attempt, he was psychiatrically hospitalized for 6 days. AHLTA indicates he was getting a MEB for shoulder issues and sleep apnea. JLV indicates only AHLTA content. Based on the information available at this time, it is clear that the applicant suffered from PTSD and MDD while on active duty. Neither one of these conditions mitigates the sexually based misconduct which resulted in applicant's UOTHC discharge from the Army. In a records review conducted at Arlington, VA on 13 September 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) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 3 March 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 November 2014 (2) Basis for Separation: The applicant was informed of the following reasons: on or about 11 September 2014, he was arrested for aggravated incest with a minor, sex assault of a child; by one in a position of trust (family) and sexual assault on a child - pattern of abuse. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 18 November 2014 (5) Administrative Separation Board: On 18 November 2014, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: 28 January 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 March 2012 / 3 years b. Age at Enlistment / Education / GT Score: 35 / GED / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 91B10, Wheeled Vehicle Mechanic / 14 years, 10 months, 2 days d. Prior Service / Characterizations: RA, 23 December 2002 - 25 August 2005 / HD RA, 26 August 2005 - 2 August 2007 / HD RA, 3 August 2007 - 4 March 2012 / HD e. Overseas Service / Combat Service: Alaska, SWA / Afghanistan (19 July 2010 - 15 June 2011); Iraq (15 August 2005 - 26 November 2006, 11 March 2008 - 17 March 2009), Kuwait (17 February 2013 - 28 October 2013) f. Awards and Decorations: ACM-2CS, ICM-2CS, ARCOM-2, AAM-5, MUC, AGCM-4, NDSM, GWOTSM, NCOPDR, ASR, OSR-4, NATOMDL g. Performance Ratings: 1 February 2012 - 31 January 2013, Fully Capable 1 February 2013 - 31 January 2014, Among The Best h. Disciplinary Action(s) / Evidentiary Record: Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Civil Confinement (CCA)," effective 9 September 2014; From "PDY" to "CCA," effective 11 September 2014; and, From "CCA" to "PDY," effective 31 October 2014. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Informal Physical Evaluation Board Proceedings, dated 21 July 2014, reflects the applicant was diagnosed with: Other specified trauma and stressor related disorder, History of TBI without residuals 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, with all allied documents listed in block 9 of the application. 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 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. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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. 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 have been retained on Active Duty. The applicant contends that he was going through a medical evaluation board. However, Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member's medical record. The applicant contends the discharge was unjust because a military JAG officer was in the court-room when he pled not guilty. 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 he was unjustly discriminated. 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. 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 13 September 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160011809 4