1. Applicant's Name: a. Application Date: 3 November 2017 b. Date Received: 16 November 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to general (under honorable conditions) or honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, is rated 90 percent disabled. The applicant was falsely accused of sexual assault. The case was closed with no findings. The applicant was disrespectful in language to an NCO due to medication the applicant was prescribed. Neither of these infractions were justification for the discharge received. A prior records review was conducted at Arlington, VA on 8 September 2017. 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 Anxiety Disorder NOS, Adjustment Disorder, Nightmare Disorder, and Major Depressive Disorder. The applicant does not have any VA records available for review. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a personal appearing hearing conducted at Arlington, VA on 9 December 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 10 December 2015 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 23 July 2015 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he committed an act of sexual assault upon Mrs. X (16 October 2014); and, he was disrespectful in language toward SGT X., a noncommissioned officer (21 May 2015). (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: 29 July 2015 (5) Administrative Separation Board: The applicant requested consideration of his case by an administrative separation board. The administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 10 November 2015, 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: 10 November 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 February 2015 / 5 years b. Age at Enlistment / Education / GT Score: 20 years / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-3 / 31B10, Military Police / 2 years, 9 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation, dated 15 January 2015, revealed the applicant was under investigation for sexual assault (adult). CG Article 15, dated 17 June 2015, for failing to go at the time prescribed to his appointed place of duty x3 (13 April 2015, 17 April 2015 and 21 May 2015); and being disrespectful language toward SGT X., a noncommissioned officer, who was in the execution of his office, by saying to him, "No, I'm not going to listen to you and you can't make me," or words to that effect (21 May 2015); reduction to PV2 / E-2, forfeiture of $404 pay (suspended), extra duty for 14 days (suspended) and an oral reprimand. The applicant received numerous negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Medical Evaluation Board (MEB) Proceedings, dated 10 December 2014, reflects the applicant was diagnosed with an unspecified depressive disorder with anxious distress, mild-moderate. Disability Evaluation System Proposed Rating, dated 23 January 2015, relates the applicant was diagnosed with an unspecified depressive disorder with anxious distress (also claimed as bipolar disorder, adjustment disorder, major depression, anxiety, PTSD and insomnia) and assigned an evaluation of 30 percent disabling. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); OTC medical documents (eight pages); Physical Disability Information Report; DD Form 214; CID Laboratory Results; Chapter 14 discharge documents and numerous other AMHRR documents (73 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 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 the characterization of service from under other than honorable conditions to general (under honorable conditions) or honorable and a change to the narrative reason for separation. 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. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting a general or an honorable discharge at the time of separation. 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 a change to the narrative reason for separation. 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, paragraph 14-12c, misconduct (serious offense). The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, he is rated 90 percent disabled. The applicant provided a VA documents that reflects he was assigned an overall rating of 90 percent. The applicant further contends, he was falsely accused of sexual assault; and the case was closed with no findings. A CID Report, dated 15 January 2015, relates that an investigation established Investigation established probable cause to believe the applicant committed the offense of sexual assault; when he committed sexual acts upon Mrs. T., while she was impaired from prescribed medication and incapable of providing consent. The applicant also contends, he was disrespectful in language to an NCO due to medication he was prescribed; and neither of these infractions were justification for the discharge he received. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 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 was 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions he/she and counsel provided in written submissions and in support of previously submitted documentary evidence. c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearing hearing conducted at Arlington, VA on 9 December 2019, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20180000081 1