1. Applicant's Name: a. Application Date: 12 May 2017 b. Date Received: 18 May 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, he joined the Air Force Reserves only after trying to join the Army, but he was pushed back due to heart issues. While in the Air Force, he completed his training in HVAC while in Texas. After two months of doing the weekend duty, he was forced to go inactive due to the fact that he lived in Georgia while stationed in Charleston, South Carolina. The drive was costing too much, so it was recommended that he take a flight from Atlanta to Charleston, but the flights left before he was able to get off work. In April 2008, after another battery of tests on his heart were ruled that he was fit for duty, he reenlisted in the Active Army. During his training, he injured his knee, but he was able to finish his training and get to his permanent duty station. He arrived at his duty station in December 2008 and performed his duties to the best of his abilities. In April 2009, he injured his back and he tried everything he could to stay on active duty and serve the country. He states, in September 2009, he made a mistake, which he regrets to this day. He tried to put his life back on track and quit drinking. For no apparent reason, the Army leaders put him on suicide watch. After that, he was doing fine and became a valuable asset to the Army. In January 2010, he broke his leg and he began to feel the weight on his shoulders because of the mishaps that seemed to come his way. He states, in March 2010, he made his last mistake, which ended up costing him his career. He knew the ramifications of his actions, but he used that to get out of a deployment. He soon regretted that mistake and he was then detained by the FBI until his discharge. He knows his actions were wrong and he truly regrets his decisions. He requests that the Board consider his good qualities and upgrade his discharge. In a records review conducted at Arlington, VA on 12 October 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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 14 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 August 2010 (2) Basis for Separation: The applicant was informed of the following reasons: As a result of the applicant initiating an online relationship with a minor female, he had been charged with Possession of Child Pornography, Enticement of a Child and Attempted Enticement of a Child. He was incarcerated awaiting trial by the civilian authorities. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 24 September 2010 (5) Administrative Separation Board: On 24 September 2010, 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 5 October 2010, the separation authority denied the applicant's conditional waiver and appointed an administrative separation board. On 4 November 2010, the administrative separation board convened and the applicant's counsel appeared in the applicant's absence. The board recommended the applicant's discharge with characterization of under other than honorable conditions. On 7 December 2010, 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: 7 December 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 April 2008 / 3 years, 13 weeks b. Age at Enlistment / Education / GT Score: 23 / GED / 83 c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 2 years, 2 months, 7 days d. Prior Service / Characterizations: AF Reserve, NIF / NIF e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR, AFTR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: United States of America vs [the applicant], Northern District of New York court document, dated 26 October 2010, reflects the applicant plead guilty to counts 1 and 2 of the information. Counts 1 and 2 consisted of: Count 1: the applicant herein, using a facility and means of interstate or foreign commerce, did knowingly persuade, induce, entice and coerce, and did attempt to knowingly persuade, induce, entice and coerce, an individual who had not attained the age of 18 years, to wit: a 13 year old female child, to engage in any sexual activity for which any person could be charged with an offense, to wit: offenses under Article 130 of the New York State Penal Law, including oral sexual conduct in violation of New York Penal Law Section 130.45 (Criminal Sexual Act in the Second Degree), and sexual intercourse, in violation of New York Penal Law Section 130.30 (Rape in the Second Degree), the defendant having been 22 years old at the time of the commission of the offense. In violation of Title 18 United States Code Section 2422(b). Count 2: the applicant herein, did knowingly receive child pornography that, using a means and facility of interstate and foreign commerce, had been transported in and affecting interstate and foreign commerce by any means, including by computer, in that the defendant, using a computer connected to the Internet, downloaded numerous graphic video files of a minor and minors engaged in sexually explicit conduct. In violation of Title 18, United States Code, Sections 2252A(a)(2)(A) and 2256(8)(A). i. Lost Time / Mode of Return: 180 days (Confined by Civil Authorities, 17 June 2010 - 14 December 2010) / Separated from service while confined j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 9 June 2010, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Pedophilia sexually attracted to females, nonexclusive type; Adjustment Disorder with Anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; and, DD Form 293 with a continuation sheet. 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 applicant contends that he was having mishaps which affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that he had good service. 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. The applicant is to be commended for his accomplishments. 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 12 October 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 AR20170008793 1