1. Applicant's Name: a. Application Date: 5 December 2017 b. Date Received: 5 December 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, the discharge characterization was unjust because the applicant served the Army for over 15 years as an honorable soldier, including six combat tours in Iraq. The applicant had no history of disciplinary actions prior to this incident, and had very good NCOERs prior this incident. The applicant believes this was a severe injustice. Since discharge, the applicant was granted service connected disability for PTSD and TBI. The applicant requests that the discharge be upgraded to honorable considering the more than 15 years the applicant served. The applicant also requests that the Board allow the applicant to retire with the more than 15 years the applicant served. 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 FAP Involvement and Adjustment Disorder. The applicant is 70% service-connected for PTSD from the VA. The VA has also diagnosed the applicant with Chronic PTSD and Unspecified Depressive Disorder. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 13 March 2020, 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 / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 July 2012 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 18 May 2012 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he received a FG Article 15 on 29 March 2012, for wrongfully making sexual advances and requests for sexual favors from two subordinates Soldiers and unlawfully grabbing one of those subordinate Soldier's underwear with his hands. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 May 2012 (5) Administrative Separation Board: Applicant requested consideration of his case by an administrative separation board. On 13 June 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. The available record did not contain any further evidence regarding the convening and the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: The separation approving authority's memorandum is not contained in the available record and government regularity is presumed in the discharge process. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 October 2005 / 6 years b. Age at Enlistment / Education / GT Score: 29 years / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-6 / 12N20, Horizontal Construction / 12B20, Combat Engineer / 15 years, 3 months, 3 years d. Prior Service / Characterizations: RA, 16 April 1997 to 8 May 2000 RA, 9 May 2000 to 7 October 2005 / HD e. Overseas Service / Combat Service: SWA / Kuwait, 18 July 1998 to 18 December 1998 / Iraq x3, 28 January 2002 to 29 January 2003, 28 January 2004 to 28 January 2005 and 22 October 2007 to 20 December 2008 / Germany f. Awards and Decorations: ARCOM-3, AAM-5, AGCM-4, NDSM-2, AFEM, ICM- ARRWHD DEV, ICM-2CS, GWOTEM, GWOTSM-2, NOPDR-2, ASR, OSR-4, CAB, PUCA, MUC g. Performance Ratings: October 2005 to 27 February 2007, Fully Capable 28 February 2007 to 30 September 2007, Marginal 1 October 2007 to 29 September 2009, Fully Capable 30 September 2009 to 19 July 2010, Marginal 20 July 2010 to 19 July 2011, Fully Capable 1 August 2011 to 30 April 2012, Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 19 March 2012, for unlawfully grabbing PFC R.H.s' underwear with his hands (20 December 2011); and wrongfully make sexual advances and requests for sexual favors from PFCs R.H. and M.T., such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces on divers occasions between (2 December 2011 and 7 January 2012); reduction to SGT / E-5, forfeiture of $500 pay (suspended) and extra duty for 45 days. Report of Mental Status Evaluation, dated 9 May 2012, revealed the applicant met the psychiatric retention standards prescribed in AR 40-501, and at the time there was no psychiatric disease or defect that warrants disposition through medical channels. He was mentally responsible, able to distinguish right from wrong and able to adhere to the right, and had the mental capacity to understand and participate in any administrative proceedings. He was psychiatrically cleared at that time for any administrative actions deemed appropriate by command. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); and three support / character statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states in his application that he volunteers in the local community and maintained employment with the school board. He also volunteers with various fundraisers, coached football, basketball and other activities; and he served as a Boy Scout Leader for a year. 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 the characterization of service from general (under honorable conditions) to honorable. The applicant's available 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 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 seeks relief contending, his discharge characterization was unjust because he served the Army for over 15 years as an honorable Soldier, including six combat tours in Iraq; and he had very good NCOERs prior this incident; and his discharge be upgraded to honorable considering the more than 15 years he served. 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. Of note, the record of evidence does not substantiate he served six combat tours; however the record does show he served four combat tours. The applicant further contends, he had no history of disciplinary actions prior to this incident. 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 applicant also contends, he believes this was a severe injustice. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. The applicant additionally contends, since his discharge he was granted service connected disability for PTSD and TBI. The service record contains no evidence of a post service PTSD or TBI diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant requests that the Board allow him to retire with the more than 15 years he served. The FY2012 National Defense Authorization Act (NDAA), Public Law 112-81, enacted 31 December 2011, authorized the military services to offer early retirement to Service members who have completed at least 15 years of active service. The Army has ended the Temporary Early Retirement Authorization (TERA) program. Service members eligible for TERA must have submitted a request through their chain of command by 15 January 2018, for early retirement consideration. This is a discretionary authority and not an entitlement. The third party statements provided with the application speak highly of the applicant. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 13 March 2020, 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 AR20180000913 1