1. Applicant's Name: a. Application Date: 30 January 2017 b. Date Received: 3 February 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 honorable, a change to his narrative reason for discharge and a change to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that special circumstances surrounded his discharge. He contends he was discharged two years before his original retirement date. He completed more than 98 percent of his enlistment obligation. An administrative separation board with an "Other Than Honorable" discharge separated him. He had a legal case which opened approximately around 10 April 2016 and had a set court-martial date of 12 September 2016. On 7 September 2016, the case was later withdrawn and dismissed without prejudice and the court-martial was terminated. During this time, from 14 April through 26 August 2016 (4 1/2 months / 135 days) he was placed in pre-trial confinement, it was later ordered by a military judge for his release due to mistakes discovered leading to and during his confinement. In a records review conducted at Arlington, VA on 6 June 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 28 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 September 2016 (2) Basis for Separation: The applicant was informed of the following reasons: committing a sexual act upon Ms. X., to wit: penetration of her vulva with his penis by unlawful force, to wit: restraining her arms with his hands on 10 April 2016; Committing a sexual act upon Ms. X., to wit: penetration of her vulva with his finger by causing bodily harm, to wit: penetrating her vulva with his finger, without her consent on 10 April 2016; Committing a sexual act upon Ms. X., to wit: touching of her breast with his hand, by causing bodily harm to her, to wit: touching her breast without her consent on 10 April 2016; Knowingly and wrongfully viewed Ms. X nipple without her consent, and under circumstances in which M. X., had a reasonable expectation of privacy on 10 April 2016; Wrongfully endeavored to impede a Criminal Investigative Command investigation in the case of the applicant by washing her body with soap to get rid of evidence, and by offering the sum of $50.00 to Ms.X., if she did not report him for penetrating her vulva with his penis without her consent, such conduct being to the prejudice of good order and discipline in the Armed Forces and of a nature to bring discredit upon the Armed Forces on 10 April 2016; Wrongfully had sexual intercourse with Ms. X., a woman that was not his wife, such conduct being to the prejudice and good order and discipline in the Armed Forces and of a nature to bring discredit upon the Armed Forces on 10 April 2016; Committed a sexual act upon Ms. X., to wit: the penetration of her vulva with an object, when he knew or reasonably should have known that Ms. X., was unaware that the sexual act was occurring on 10 April 2016; and Violation of the United States Army Japan policy, subject "Liberty Policy for All U.S. Military Forces Located and Operating in Japan," dated 26 November 2014, by consuming alcohol in a public place between the hours of 2400 and 0500 on 10 April 2016. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 3 October 2016, the applicant request that his case be heard by an administrative separation board (5) Administrative Separation Board: On 19 October 2016, the applicant was notified to appear before an administrative separation board and advised of his rights. On 6 December 2016, the administrative separation board convened. The applicant appeared with counsel. The board recommended the applicant be discharged with issuance of a characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: On 13 December 2016, 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. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2012 / Indefinite b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92Y1S, Unit Supply specialist, 13B20, Cannon Crewmember / 18 years d. Prior Service / Characterizations: RA, 29 December 1998 to 28 December 2000 / HD RA, 29 December 2000 to 28 December 2004 / HD RA, 29 December 2004 to 6 March 2008 / HD RA, 7 March 2008 to 1 March 2012 / HD e. Overseas Service / Combat Service: SWA, Germany, Okinawa, Korea / Iraq (22 February 2003 to 22 February 2004 and 7January 2006 to 4 December 2006) f. Awards and Decorations: ARCOM-3, JSAM, AAM-2, JMUA, MUC-2, AGCM-5, NDSM, ICM-3CS, GWOTEM, GWOTSM, KDSM, NOPDR-2, ASR, OSR-8 g. Performance Ratings: 1 August 2011 to 5 January 2015 (five reports), Fully Capable 6 January 2015 to 21 September 2015, Among The Best 22 September 2015 to 20 September 2016, Met Standards h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15, dated 16 March 2016, for violating Article 134, UCMJ by wrongfully wearing a Special Forces Command (Airborne) (Provisional) Combat Patch upon his uniform without authority. The punishment consisted of 14 days extra duty and restriction. A Law Enforcement Report, dated 22 July 2016. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 26 September 2016, shows the applicant was diagnosed with an Axis II for 301.09 Personality disorder NOS. It was noted that the applicant could understand and participate in administrative proceedings, and appreciate the difference between right and wrong. From a behavioral health perspective, there was no indication of a board or a behavioral health disorder at the time. However, the applicant had a long standing disorder of character, i.e., a personality disorder which could have made him incompatible with military service. Additionally, his personality disorder was likely to impair judgment and reliability to protect classified information. The applicant was cleared from a behavioral health perspective for an administrative separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; copy of enlisted record brief (ERB); and General Court-Martial Order Number 9, dated 28 October 2016. 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. 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 honorable, a change to his narrative reason for discharge and a change to his reentry eligibility (RE) code. The applicant's record 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. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635- 200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ," with a RE code of 3. Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and reentry code, entered in block 27, of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5- 1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, that special circumstances surrounded his discharge. He contends he was discharged two years before his original retirement date. He completed more than 98 percent of his enlistment obligation. An administrative separation board with an "Other Than Honorable" discharge separated him. He had a legal case which opened approximately around 10 April 2016 and had a set court-martial date of 12 September 2016. On 7 September 2016, the case was later withdrawn and dismissed without prejudice and the court-martial was terminated. During this time, from 14 April through 26 August 2016 (4 1/2 months / 135 days) he was placed in pre-trial confinement, it was later ordered by a military judge for his release due to mistakes discovered leading to / during his confinement. The applicant's contentions were noted as stated in the aforementioned paragraph. 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 too be commended on his accomplishments. However, evidence in the record shows that on 7 September 2016, the Convening Authority withdrew and dismissed all charges and specification without prejudice. Further, on 27 September 2016, Chapter 14 action was initiated against the applicant for the same charges contained in the court-martial documents. Army Regulation 635- 200, in pertinent part, stipulates that a Soldier may be separated if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts Martial. 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 6 June 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 AR20170002139 1