1. Applicant's Name: a. Application Date: 28 March 2017 b. Date Received: 30 March 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, a charge should be dismissed when it is not supported by available evidence or when there are sound reasons and it is not appropriate. The applicant signed out on transition leave on until 2 December 2012 and was then to be medically retired from active duty. The applicant's DD Form 214 was voided and retirement orders were actually revoked. The applicant was retired with a 70 percent rating from the Army for combat related PTSD. An unreasonable multiplication of charges were preferred and referred against the applicant. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, the applicant had multiple medical and behavioral health diagnoses. Post- service records indicate the SM has a 90% disability rating from the VA for PTSD. The SMs electronic military medical records revealed a diagnosis of PTSD; however, this condition is not mitigating for the pattern of misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 15 August 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: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 2 December 2012 c. Separation Facts: Yes (1) Date Charges Were Preferred: 16 May 2013 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 16 May 2013, the applicant was charged with the following offenses; without authority and with intent to remain away therefrom permanently, absented himself from his unit and did remain so absent in desertion until he was apprehended (20 November 2012 until 3 May 2013); having knowledge of a lawful order issued by COL X., an order which it was his duty to obey, did fail to obey the same by engaging in a prohibited association with Soldiers not in the similar training status x2, PFCs / E-3 X and X., initial entry trainees, while the said SGT X. was a non-initial entry training Soldier, which association included socializing at off-post establishments, consuming alcoholic beverages, and transporting the initial entry training Soldiers to his off-post apartment in his privately owned vehicle, did near San Antonio, Texas, between (5 October 2012 and 7 October 2012); having knowledge of a lawful order issued by COL X., an order which it was his duty to obey, did fail to obey the same by engaging in a prohibited association with Soldiers not in the similar training status, SPC / E-4 X., PFC X., and PFC X., initial entry training Soldiers, while the said SGT X. was a non-initial entry training Soldier, which association included socializing at off- post establishments, consuming alcoholic beverages, and transporting the initial entry training Soldiers to his off-post apartment in his privately owned vehicle, did near San Antonio, Texas, between (1 October 2012 and 25 October 2012); having knowledge of a lawful order issued by LTC X., an order which it was his duty to obey, did fail to obey the same by assigning corrective training tasks to Initial Entry Trainees while the said SGT X., was a prior service Soldier, did near Fort Sam Houston, Texas, between (1 August 2012 and 30 October 2012); having knowledge of a lawful order issued by LTC X., an order which it was his duty to obey, did fail to obey the same by taking PFC / E-3 X. and PFC X., initial entry trainees, to his personal off-post residence (7 October 2012); having knowledge of n lawful order issued by CPT X, did fail to obey the same by using the social networking website Facebook to communicate with PFCs / E-3 X and X, junior enlisted AIT Soldiers, did, at or near San Antonio, Texas, between (1 August 2012 and 19 November 2012); on divers occasions as a minor under the age of 21 years, wrongfully purchase and make available alcoholic beverages to PFC / E-3 D., a minor under the age of 21 years, in violation of Title 4, Chapter 106, Section 106.06 of the Texas Alcohol Beverage Code, assimilated into federal law by Title 18, United States Code, Section J 3, which conduct was prejudicial to good order and discipline in the Armed Forces, between (1 October 2012 and 25 October 2012); wrongfully have sexual intercourse with PFC / E-3 X., a married woman not his wife, which conduct was prejudicial to good order and discipline in the Armed Forces (7 October 2012); and with intent to deceive, make to First Sergeant / E-8 X, an official statement, "No. I went to I-looters twice with lots of Soldiers. Not them by themselves. I drove by myself, Soldiers got their [sic] in a taxi cab, I went alone and left alone. I gave my number in public for Soldiers to call me if they ever needed anything, as an NCO;' or words to that effect, when asked by the said 1SG X, whether or not SGT X. had ever fraternized with PV2 X. or PFC X., or had engaged in any type of inappropriate relations or sexual activity including intercourse, touching of a sexual nature, hugging, kissing, hand holding, physical caressing, meeting privately for any purpose of entertainment, dining, recreation, sport, conversation, or intimacy, being entertained in a private home, sharing a motel room, being transported in a privately owned vehicle, or other activities of a personal nature not required by the performance of official duties, which statement was false in that SGT X., had sexual intercourse with PV2 X. and kissed PFC Y., while they were in his off-post home which he drove them to in his privately owned vehicle (30 October 2012). The evidence of record contains a second DD Form 458, Charge Sheet which indicates on 13 June 2013, the applicant was additionally charged with the following offenses; having received a lawful order from 1SG / E-8, G.B., a senior noncommissioned officer, to report to G Company, 232d Medical Battalion no later than 0800, an order which it was his duty to obey, did willfully disobey the same near Fort Sam Houston, Texas (20 November 2012); and having received a lawful order from SFC / E-7, X., a senior Noncommissioned officer, to stop punishing, disciplining, or assigning corrective training to initial entry trainees, an order which it was his duty to obey, did willfully disobey the same near Fort Sam Houston, Texas (19 November 2012). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 8 August 2012, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 August 2013 / Under Other Than Honorable Conditions / the applicant was reduced to the lowest enlisted grade. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 June 2011 / 4 years b. Age at Enlistment / Education / GT Score: 26 years / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92G20, Food Service Specialist / 10 years, 2 month, 8 days d. Prior Service / Characterizations: ARNG, 25 September 2002 to 18 August 2003 / NA IADT, 19 August 2003 to 17 January 2004 / UNC ARNG, 18 January 2004 to 20 February 2005 / NA AD, 21 February 2005 to 15 June 2006 / HD ARNG, 16 June 2006 to 4 July 2007 / HD RA, 5 July 2007 to 31 May 2011 / HD e. Overseas Service / Combat Service: SWA / Iraq x2, 21 February 2005 to 16 May 2006 and 23 October 2007 to 10 January 2009 / Germany f. Awards and Decorations: ARCOM-3, AAM-3, AGCM-2, NDSM, ICM-CS-4, GWOTEM, GWOTSM, AFRM-M DEV, NOPDR, ASR, OSR-3, CAB g. Performance Ratings: 1 December 2010 to 30 November 2011, Among The Best 1 December 2011 to 3 May 2012, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: i. Lost Time / Mode of Return: AWOL for 235 days, 21 November 2012 until 14 August 2013; apprehended by military authorities. j. Diagnosed PTSD / TBI / Behavioral Health: Letter, Brooke Army Medical Center, dated 5 August 2013, relates that the applicant was followed at the Campus Behavioral Health Services since he self-referred for mental health treatment in June 2012. From the onset it was very clear that the applicant was suffering from PTSD. Dr. X., determined that a Medical Evaluation Board was the proper course of action. An MEB and PEB was accomplished and he continued with therapy sessions at CBHS until the time of his departure from Fort Sam Houston. An Informal Physical Evaluation Board, dated 1 November 2012, diagnosed the applicant with PTSD. The Board found the applicant was physically unfit and recommended a rating of 70 percent and that he be placed on Temporary Disability Retired List (TDRL), with a reexamination during July 2013. 5. APPLICANT-PROVIDED EVIDENCE: Online application (six pages); and Chapter 10 separation file (65 pages). 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 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 although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant's record of service, 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. 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. His record documents several acts of significant achievement and valor to include combat service x2; however, it did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant seeks relief contending, a charge should be dismissed when it is not supported by available evidence or when there are sound reasons and it is not appropriate; and an unreasonable multiplication of charges were preferred and referred against him. The record of evidence shows that the applicant voluntarily requested discharge in lieu of trial by court-martial under provisions of AR 635-200, Chapter 10. He requested discharge because of the charges preferred against him under UCMJ authorized the imposition of a bad conduct or dishonorable discharge. The applicant further contends, he signed out on transition leave until 2 December 2012, he was then to be medically retired from active duty; and his DD Form 214 was voided and his retirement orders were actually revoked. The record of evidence shows that the applicant had retirement orders with an effective date of retirement of 2 December 2012. On 28 November 2012, based on the investigation, the unit revoked his orders and voided the DD Form 214. The applicant was notified of the revocation of his orders and ordered to report to the unit. He did not report as ordered and his duty status was indicated as AWOL. The applicant also contends, he was tactically retired with a 70 percent rating from the Army for combat related PTSD. The Informal Physical Evaluation Board, diagnosed the applicant with PTSD. The Board found the applicant was physically unfit and recommended a rating of 70 percent and placed on TDRL. 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 15 August 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 AR20170004792 1