1. Applicant's Name: a. Application Date: 9 January 2017 b. Date Received: 24 January 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, that his discharge reflects he had not completed his contract with the military. His active duty contract reflects he had enlisted for three years of active duty service. His DD Form 214, reflects he served three years and three months. He went AWOL because of stress, anxiety and other issues for two months and three weeks and he was pushed to the breaking point by his PTSD, which he did not know how to cope with. When he returned to his unit he completed his remaining service time and served additional time due to alleged misconduct, which a special court-martial had proven he was innocent. He learned while he was in an unlawful pre-trial confinement that he was extended in without his knowledge or consent. He states, he was discharged a year before his trial in a civil court and he is still in the process of proving his innocence. He states, he is a combat veteran with mild PTSD, which is something he continues to live with. He had made mistakes, but those mistakes were not in the line of duty. He is in the process of correcting his mistakes and desires an upgrade to allow him to use veteran's benefits, which will help him support his family. Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV were reviewed. AHLTA notes indicate applicant reported some PTSD symptoms while on active duty, primarily poor sleep, flashbacks and nightmares. AHLTA indicates he did not meet criteria for PTSD and was diagnosed with Adjustment Disorder with mixed disturbance of emotions and conduct. JLV indicates applicant was recently released from prison and is in the VA Reentry Program. He exceeded the 5 year time limit to prove service connectability (due to incarceration) and cannot receive future services at the VA without becoming service connected. JLV contains no diagnostic information regarding applicant. Based on the currently available information, the applicant does not have a mitigating Behavioral Health disorder. In a records review conducted at Arlington, VA on 11 May 2018, 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 9 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 December 2011 (2) Basis for Separation: The applicant was informed of the following reasons: He was absent without leave from 17 May 2011 to 9 August 2011; While in an AWOL status, he unlawfully and knowingly took, enticed, or kept a minor, with whom he had sexual relations, from her lawful custodian with the intent to hold her permanently or for a protracted period of time; Upon returning from AWOL status, he broke into unit buildings, offices, and supply areas; stole military equipment and personal property; and, sold military equipment without authority; and, He failed to report to his appointed place of duty on numerous occasions and he disobeyed a superior noncommissioned officer. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 22 December 2011 (5) Administrative Separation Board: On 22 December 2011, the applicant conditionally waived consideration of his case before an administrative separation board, contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 26 February 2012, the separation authority referred the applicant's case to an administrative separation board. On 27 January 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. On 13 February 2012, the administrative separation board convened and the applicant's counsel appeared in his absence. The board recommended the applicant's discharge with a characterization of service of under other than honorable conditions. On 1 March 2012, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 1 March 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 August 2008 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 3 years, 2 months, 10 days d. Prior Service / Characterizations: ARNG, 15 July 2008 - 27 August 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: AAM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 1 March 2011, for failing to go at the time prescribed to his appointed place of duty (1 December 2010 and 18 January 2011). The punishment consisted of a reduction to E-2; forfeiture of $383 (suspended); and, extra duty and restriction for 14 days. Record of Supplementary Action under Article 15, UCMJ, dated 21 March 2011, reflects the suspended portion of the punishment was vacated because the applicant failed to go at the time prescribed to his appointed place of duty on 17 March 2011. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 17 May 2011; From "AWOL" to "Dropped From Rolls (DFR)," effective 17 June 2011; and, From "DFR" to "PDY," effective 9 August 2011. FG Article 15, dated 23 September 2011, for being AWOL between 17 May and 9 August 2011. The punishment consisted of a reduction to E-1; forfeiture of $733 pay (suspended); and, extra duty and restriction for 45 days. CID Report of Investigation - Initial Final, dated 9 December 2011, reflects an investigation was initiated upon notification by Mr. X, father of Miss X, who reported that the applicant may have sexually assaulted Miss M. An investigation by the Jefferson County sheriff's Office and the Salem Police Department, established probable cause to believe that the applicant (age 22) committed the offenses- of Rape in the First Degree-, Kidnap-and Custodial Interference, when he took Miss X (age 12) away from her parent's residence without their consent and subsequently engaged in sexual intercourse with her on three separate occasions. Report of result of Trial, reflects the applicant was tried in a Special Court-Martial on 19 December 2011. The applicant was charged with nine specifications. The applicant pled Not Guilty to all specifications. The record does not reflect the findings of each of the specific offenses: Violation of Article 121, UCMJ, five specifications: Between 1 and 10 November 2010, stole two guitars of a value of more than $500, the property of the United States Military. Between 3 and 30 August 2011, wrongfully appropriated a television of a value of less than $500 from PFC B. On 29 October 2011, stole an Advanced Combat Helmet and a grappling hook, a value of less than $500, the property of the United States Military. On 29 October 2011, stole an Ipod dock, of a value of less than $500, from an unknown individual. On 30 October 2011, stole six hard drives, compasses, pistol holders, and military eye protection goggles of a value of more than $500 from the United States Military. Violation of Article 81, UCMJ: between 27 and 31 October 2011, conspire with PV2 K to commit the offense of: Larceny of military property with an aggregate value of more than $500, United States Military property; and, in doing so unlawfully broke into the A Company Headquarters building after duty hours and steal various pieces of military property. Violation of Article 130, UCMJ, on divers occasions between 27 and 30 October 2011, unlawfully enter building 3627. Sentence: Confinement for 60 days. State of Oregon, Jefferson County, Circuit Court document, dated 21 December 2011, reflects the applicant was named as a co-defendant accused in the crimes of: Rape in the Second Degree, and Kidnapping in the Second Degree Report of Mental Status Evaluation, dated 22 December 2011, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. i. Lost Time / Mode of Return: 174 days (AWOL, 17 May 2011 - 8 August 2011) / Apprehended by Civil Authorities; (Confined by Military Authorities, 19 December 2011 - 9 March 2012) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and a self-authored statement. 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. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment 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 characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors 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. Caution shall be exercised 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 general (under honorable conditions). 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 service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. The applicant contends he suffers from mild-PTSD and it was this condition that affected his behavior and led to his discharge. However, the service record contains no evidence of Post- Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends he was unlawfully confined pre-trial. 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 his DD Form 214, reflects his time in service incorrectly. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veteran's 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. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Notwithstanding the administrative error, based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 11 May 2018, 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 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 AR20170001548 5