1. Applicant's Name: a. Application Date: 16 November 2016 b. Date Received: 27 December 2016 c. Counsel: Mr. Jeremy H. Gonzalez Ibrahim, Esquire, PO Box 1025, Chadds Ford, PA 19317 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant states, in pertinent part and in effect, his request for an upgrade and to change the narrative reason for his discharge to in-service combat related PTSD is based on propriety and equity. His untreated combat-related PTSD led to conduct that was an aberration in his service and his discharge. His command did not allow the Sanity Board to be conducted, which would have provided information on his PTSD, a defense to the court-martial charges, and mitigation for his discharge. His current discharge disqualifies him from obtaining valuable long term employment opportunities. The counsel on behalf of the applicant presented a brief describing the circumstances surrounding the events that led to the applicant's discharge, and the applicant record of service and achievements. In pertinent part and in effect, the counsel contends that current policy such as the supplemental guidance to the Military Boards, and the 4 November 2015 letter from the US Senate encourages review of discharge so that appropriate health and welfare benefits become available, and acknowledges the large mental health circumstances affecting the discharge of veterans similar to the applicant's situation, respectively. The counsel reiterated that the consequences of the lack of treatment played themselves out in both the conduct that the applicant is alleged to have engaged in with Ms. X, and his subsequent destructive decision to agree to a discharge in lieu of court martial. The applicant was also referred to the Medical Evaluation Review Board, and was undergoing the evaluation that diagnosed him with PTSD, and that the impending findings of the board would have resulted in a disability of some degree due to PTSD. VA issued the Disability Evaluation System Proposed Rating of 50 percent for PTSD, and the informal Physical Evaluation Board proceedings recommended placing him on Temporary Disability Retired List (TSRL), and the applicant had concurred with those findings. Since his discharge, the applicant has had no contacts with law enforcement. He has pursued and maintained gainful employment. He has continued his course of therapy for treatment of his post-traumatic stress disorder. Further, he is presently 25 years of age. His ceiling of success and achievement is limited only due to the nature of his discharge. Given the circumstances, and the quality of his service, both propriety and equity dictate that he is granted the relief he has requested. Per the Board's Medical Officer, based on the information available for review at the time, PTSD is not mitigating for the offenses of videotaping consensual sexual contact without permission of all parties involved and posting the consensual sexual contact on the internet without appropriate consent from all parties involved. In a personal appearance hearing conducted at Arlington, VA on 24 July 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 30 May 2013 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 28 March 2013, the following charge was preferred, and referred to trial by a special court-martial empowered to adjudge a bad conduct discharge on 12 April 2013: The Charge: Two specifications of violating Article 120c, UCMJ, for knowingly and wrongfully videotaping the private area of Ms. X, without her consent, and under circumstances in which she has reasonable expectation of privacy, and distributing and broadcasting a recording the applicant knew or reasonably should have known was the private area of Ms. X, that was recorded without her consent and under circumstances in which she had a reasonable expectation of privacy, on 31 October 2012. (2) Legal Consultation Date: 2 May 2013 (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: 7 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 October 2010 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 7 months, 27 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (14 May 2011 to 1 November 2011) f. Awards and Decorations: ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for his performance not being acceptable; lying to an NCO; failing to report to his team and squad leaders; failing to conduct training; failing to follow the instructions of his chain of command; pass being disapproved; lacking control of his emotions; causing serious injury to himself; losing his barracks room key card; failing the barracks room inspection; not maintaining a clean room; failing to report to his extra duty at the prescribed time; result of an Article 15 punishment; being admitted to a health center for behavioral health concerns; and being flagged for criminal investigation. CG Article 15, dated 13 July 2012, for being disrespectful in deportment towards an NCO on 12 April 2012. The punishment consisted of a reduction to E-2 (suspended), forfeiture of $389 (suspended); and 14 days of extra duty and restriction. CID Report, dated 19 December 2012, indicates the applicant was the subject of an investigation for indecent sexual acts. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Counseling statement, dated 17 August 2012 with discharge summary and prescription, indicate that on 7 August 2012, the applicant was admitted to a health center for behavioral health issues, being diagnosed with a Bipolar Mixed condition, and being given a temporary profile for depression, and he was discharged on 14 August 2012. Physical Profile, dated 14 August 2012, indicates the applicant was provided a temporary profile for depression. Applicant clinical progress notes document the applicant's PTSD stressors (pages 92-96 of his application). Medical doctor letter, dated 18 November 2016, indicates the applicant was being treated for diagnoses of mood disorder NOS, attention deficit hyperactivity disorder, and history of PTSD with anxiety and depressive symptoms. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 16 November 2016, with attorney- authored brief and chronological order of attached documents (1 through 54) identified as Appendix A; applicant's Chapter 10 request with recommendations; separation authority's decision memorandum with order not to enter military installations; discharge orders; SecDef Supplemental Guidance, dated 3 September 2014; US Senate letter, dated 4 November 2015; Pennsylvania State Police Criminal Record Check; applicant's affidavit; applicant's treating MD letter, dated 18 November 2016; and 18 letters/statements of support and character references. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, since the applicant's discharge, he has pursued and maintained gainful employment, and he has continued a course of therapy for treatment of his post-traumatic stress disorder. 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. 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. 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 to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant's record of service, and 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. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. 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. Hisrecord documents no other acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority. The applicant's contentions regarding his behavioral health issues involving a diagnosis of PTSD that was not treated during the period he served, were carefully considered. A careful review of the documentary evidence in the applicant's record indicates the applicant had been receiving treatment for behavioral health issues and PTSD symptoms after his discharge, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant contends the discharge was unjust because his command did not allow the Sanity Board to be conducted, which would have provided information on his PTSD, a defense to the court-martial charges, and mitigation for his discharge. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The applicant contends his current discharge disqualifies him from obtaining valuable employment opportunities, and that the ceiling of his success and achievement is limited due to the nature of his discharge perhaps a desire for veterans' benefits. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The applicant contends his case was referred to an MEB process. However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The third party statements provided with the application speak highly of the applicant's character and/or performances, and recognize his good conduct after leaving the Army; however, the persons providing the character reference and supporting 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 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 the following additional document(s): Resume - 2 pages Character reference - 1 page b. The applicant presented the following additional contention(s): Attorney argued for upgrade based on the propriety of the discharge. c. Witness(es) / Observer(s): X - witness X - witness 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 24 July 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20170000357 4