1. Applicant's Name: a. Application Date: 28 December 2017 b. Date Received: 23 January 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable; and, that he be allowed to retire with full benefits and retirement commensurate with his time in service and highest grade attained. The applicant seeks relief contending, in effect, by all accounts, the applicant was an exemplary Soldier. He attained the rank of SSG in 2004 and was assigned the position of Food Operations Manager in April 2014 for the Support Company to which he was attached. Prior to the allegation for which he was administratively separated, the applicant had had no disciplinary history whatsoever with either the military or civilian authorities. In August of 2014, the applicant was served written notice of the intent of the Chain of Command to administratively separate him pursuant to AR 635-200, 14-12c, commission of a serious offense. On 18 December 2014, the Administrative Separation Board convened and heard evidence. Counsel represented the applicant at the hearing. After several hours of deliberation the Board elected to separate the applicant with an Other than Honorable discharge. As a result of the Board's decision, the applicant was discharged from the United States Army on 3 May 2016 with an Other than Honorable Discharge. Counsel states the conduct and findings of the administrative separation board were legally deficient and improper due to four primary basis: (1) The Board failed to consider the legal defense of voluntary intoxication as it related to the allegation of sexual assault on a child; (2) The Board improperly allowed the Government to argue that applicant had entered into a plea agreement and that he had already pled guilty to civilian charges related to the underlying facts; (3) The Board was improperly convened and the applicant was improperly separated due to the fact that Regulations relating to applicant's eligibility for retirement were not properly adhered to; and, (4) Equity demands that the results of the Board be overturned and the applicant be given an Honorable Discharge. Counsel further details the contentions in an allied legal brief provided with the application. 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 anxiety/Adjustment Disorder with anxiety and depressed mood/Adjustment Disorder with mixed emotional features; Alcohol Dependence; Anxiety Disorder NOS; Other Specified Family Circumstances; Sleep Disorder. The VA has also diagnosed the applicant with PTSD. The applicant is 60% service connected, 10% for PTSD. 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 18 November 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 (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 3 May 2016 c. Separation Facts: The applicant's service record is void of the facts and circumstances surrounding his separation. The information below was derived from the separation documents provided by the applicant. (1) Date of Notification of Intent to Separate: 19 August 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant committed sexual assault of a child under the age of 16 years old. On 12 May 2014, he reached down the pajama pants of his child and proceeded to touch her vagina and buttocks. Then he reached up the child's shirt and proceeded to touch her breasts. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 19 August 2014 (5) Administrative Separation Board: On 23 October 2014, the applicant was notified to appear before an administrative separation board and advised of his rights. On 18 December 2014, 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. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 September 2007 / Indefinite b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92G10, Food Service Specialist / 20 years, 28 days d. Prior Service / Characterizations: RA, 4 April 1996 - 15 December 1998 / HD RA, 16 December 1998 - 21 December 2000 / HD RA, 22 December 2000 - 30 April 2002 / HD RA, 1 May 2002 - 10 September 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (9 July 2003 - 20 April 2004; 27 March 2010 - 7 March 2011); Iraq (10 August 2005 - 1 August 2006; 5 September 2007 - 9 November 2008) f. Awards and Decorations: ACM-2CS; ARCOM-5; AAM-2; MUC-3; AGCM-5; NDSM; GWOTSM; KDSM, NCOPDR-2; ASR; OSR-5; NATOMDL / The applicant's service record reflects he was awarded the ICM-3CS, however, the award is not reflected on his DD Form 214. g. Performance Ratings: 1 February 2007 - 31 January 2008 / Fully Capable 1 February 2008 - 29 September 2008 / Fully Capable 30 September 2008 - 20 March 2009 / Fully Capable 21 March 2009 - 31 October 2009 / Among The Best 1 November 2009 - 31 October 2010 / Fully Capable 31 October 2010 - 10 June 2011 / Among The Best 11 June 2011 - 10 June 2012 / Fully Capable 11 June 2012 - 10 June 2013 / Among The Best 11 June 2013 - 28 February 2014 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: 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 26 June 2014; and, From "CCA" to "PDY," effective 27 June 2014. i. Lost Time / Mode of Return: 2 days (CCA, 26 June 2014 - 27 June 2014) NIF j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, with allied legal brief and all listed exhibits. 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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable; and, that he be allowed to retire with full benefits and retirement commensurate with his time in service and highest grade attained. 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 should be allowed to retire with full benefits and retirement commensurate with his time in service and highest grade attained. 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 he was suffering from PTSD, which affected his behavior and led to his discharge. However, the service record contains no evidence of Post-Traumatic Stress Disorder 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 did submit evidence that he has a service-connected disability and receives compensation; however, the evidence did not reflect the disabilities. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the conduct and findings of the Board were legally deficient and improper. 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 four combat tours. 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. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the complete discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 18 November 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 / 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 AR20180003419 1