1. Applicant's Name: a. Application Date: 27 November 2017 b. Date Received: 11 December 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable; rank restored to Sergeant / E-5; the time in service be amended on the DD Form 214, to reflect a full 9-years and 7-month career; the ban from entering Fort Carson be lifted; and, the applicant wants to sell the 60 days of leave that was earned, which was taken upon discharge. The applicant seeks relief contending, in effect, was unjustly accused of sexually assaulting a minor in the state of Colorado. The day before the applicant was set to go on approved terminal leave, the applicant had already cleared post, but then the terminal leave was cancelled and an administrative discharge was initiated. The proceedings were initiated August 2017, which was 17 months after being accused. The applicant received orders for other than honorable conditions discharge the day before the original ETS date. There was no UCMJ action during the process, but due to the type of discharge, was demoted to private. The applicant states, a month after discharge, the applicant went through a jury trial where the applicant was found not guilty after a 30-minute jury deliberation. The applicant was advised by a JAG attorney to waive the right to a board due to the ongoing case off post. The applicant provides the Board with evidence that the unit blatantly went against regulations and altered the timeline. The applicant spent almost 10 years in the active Army and had never been in trouble and maintained innocence throughout the entire process. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder with mixed anxiety and depressed mood. VA records only contain DoD content. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 24 October 2019, and by a 3-2 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: 29 September 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 August 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On 23 April 2016, he committed an act of abusive sexual contact upon C.H., a child under the age of 12 years old. Additionally, on 23 April 2016, he used indecent language toward Ms. T.H., which conduct was service discrediting (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 3 August 2017 (5) Administrative Separation Board: On 3 August 2017, 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 24 August 2017, the separation authority denied the applicant's conditional waiver. On 29 August 2017, the applicant was notified to appear before an administrative separation board and advised of his rights. On 18 September 2017, the applicant unconditionally waived consideration of his case before an administrative separation board. On 21 September 2017, the separation authority approved the applicant's unconditional waiver. (6) Separation Decision Date / Characterization: 21 September 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2012 / 5 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 119 c. Highest Grade Achieved / MOS / Total Service: E-5 / 89D10, EOD Specialist / 9 years, 7 months, 3 days d. Prior Service / Characterizations: RA, 27 February 2008 - 30 September 2012 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (27 August 2009 - 22 May 2010) f. Awards and Decorations: AAM-5, AGCM-2, NDSM, GWOTSM, KDSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: 1 August 2012 - 14 June 2013 / Fully Capable 15 June 2013 - 24 April 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: El Paso County Sherriff's Office, Incident Report, dated 23 April 2016, reflects the applicant was named as the subject for the offense of: Unlawful Sexual Contact-Child. Arrest Warrant, dated 21 June 2016, reflects probable was found to believe the applicant committed the offense of: C.R.S 18-3-405 Sexual Assault on a Child, a class 3 felony. El Paso County Sherriff's Office, Incident Report (supplement), dated 21 June 2016, reflects at approximately 2:00 pm, Detective J.V., made contact with the applicant's commanding officer, Captain C., at Fort Carson and advised him, she had a warrant for the applicant's arrest. Detective J.V., requested he bring the applicant to the Provost Marshall's Office (PMO) on Fort Carson so she could take the applicant into custody on the warrant. Captain C. agreed and said he would meet at the PMO. At approximately 3:15pm, Captain C. turned the applicant over to Detective J.V. at the PMO. Detective J.V. subsequently placed the applicant under arrest to be transported to the Criminal Justice Center for booking. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)," effective 21 June 2016; and, From "Confined by Civil Authorities (CCA)" to "Present for Duty (PDY)," effective 22 June 2016. Report of Mental Status Evaluation, dated 1 August 2017, 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: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 3 August 2017, reflects the examining medical physician noted in the comments section: diagnosed with adjustment disorder/anxiety/depression and previously seen at EBH. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; District Court, Jury Verdict with allied documents; emails (six pages); Finance Request Memo; DA Form 31; DA Form 137- 2. 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 honorable; his be rank restored rank to Sergeant / E-5; his time in service be amended on his DD Form 214, to reflect his full 9-years and 7-month career; the ban from entering Fort Carson be lifted; and, he wants to sell the 60 days of leave he earned, which was taken from him upon his discharge. 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 requests restoration of his rank to Sergeant; his time in service be amended on his DD Form 214, to reflect his full 9-years and 7-month career; the ban from entering Fort Carson be lifted; and, he wants to sell the 60 days of leave he earned, which was taken from him upon his discharge. However, the applicant's requests do 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 his unit altered the time line of his case to separate him prior to his ETS; and, contents that he never sexualy assaulted anyone and provides evidence that he was found not guilty of the charge, after his discharge. 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 that he had good service which included a combat tour. 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 24 October 2019, and by a 3-2 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 AR20170019771 3