1. Applicant's Name: a. Application Date: 1 August 2016 b. Date Received: 4 August 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable discharge to honorable or general (under honorable conditions) and a change to his narrative reason for discharge. The applicant seeks relief contending, in effect, that clemency was warranted regarding his discharge because it was based on one isolated civil conviction and he believes the Army acted improperly. He contends in his 36 months of service, including active combat, his record of awards, decorations and promotion shows he was a good and honorable service member. In regards to his civilian conviction, he contends he was innocent of the said charges but had a bad lawyer/advice via gross misrepresentation. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant did not have a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. In a records review conducted at Arlington, VA on 13 October 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 28 September 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2011 (2) Basis for Separation: The applicant was informed of the following reason: wrongfully possessing child pornography between 22 January 2011 and 28 March 2011. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 10 August 2011 (5) Administrative Separation Board: The applicant waived consideration of his case by an administrative separation board (6) Separation Decision Date / Characterization: 15 September 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 December 2009 / NIF b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19K10, M1 Armor Crewman / 2 years, 8 months d. Prior Service / Characterizations: RA, 21 August 2008 to 16 December 2009 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (1 March 2010 to 16 October 2010) f. Awards and Decorations: ARCOM, AAM-2, NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Criminal Investigation Division Liberty County Sheriff Office incident report, dated 13 May 2011, shows the applicant was subject of investigation for the possession and distribution of child pornography. i. Lost Time / Mode of Return: Confinement by civilian authority 161 days (7 April 2011 to 14 September 2011) j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 22 June 2011, shows the applicant was diagnosed with an Axis I for an (Adjustment Disorder with Depressed Mood). The applicant was cleared for any administrative action deemed appropriated by command, such as separation under AR 635-200, Chapter 14-12. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Department of Veterans Affairs notice of disagreement; certificate of promotion to Specialist; award of the ARCOM and AAM; certificate for honorable discharge; oath of reenlistment; certificates of completion; report of Kimberly Copeland and Associates, LLC; several character reference letters; petition for upgrade of discharge; and DD Form 214 worksheet. 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 discharge to honorable or general (under honorable conditions) and a change to his narrative reason for discharge. The applicant's available of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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. Furthermore, the appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for misconduct (serious offense) is "JKQ" and the RE code is 3. The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, that clemency was warranted regarding his discharge because it was based on one isolated civil conviction and he believes the Army acted improperly. 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. He contends in his 36 months of service, including active combat, his record of awards, decorations and promotion shows he was a good and honorable service member. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered and the applicant is to be commended on his accomplishments. He also contends that in regards to his civilian conviction, he was innocent of the said charges but had a bad lawyer/advice via gross misrepresentation. 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 innocent of the charges against him or that he had a bad lawyer/advice via gross misrepresentation. The applicant's statements alone does 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 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 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 October 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 AR20160013967 3