1. Applicant's Name: a. Application Date: 21 February 2018 b. Date Received: 5 March 2018 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. The applicant seeks relief contending, in effect, requests an upgrade due to mitigating circumstances, prejudice and not having the correct facts. The applicant found LTC J.T. to be very unfair and irrational; he never considered non-judicial punishment for a first offense. The applicant's PTSD from Afghanistan has intensified and requires medical attention. The applicant experienced bilateral knee problems, hearing loss and tinnitus; and during the deployment the applicant was exposed to burn pits. During the Summary Court-Martial, the applicant felt like the odds were stacked against. If given the opportunity, the applicant would reenter the United States Army and continue a career. 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 no BH diagnoses while on active duty. The VA has diagnosed the applicant with Unspecified Trauma and Stress Related Disorder, but not PTSD. In summary, the applicant did 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 6 February 2019, 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, Paragraph 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 28 January 2013 c. Separation Facts: Yes, applicant submitted separation file with his application. (1) Date of Notification of Intent to Separate: 11 September 2012 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; having knowledge of a lawful order issued by CPT. X., not to go up to the guard tower unless on duty as the sentinel, fail to obey the same by wrongfully visiting the guard tower (4 December 2011); with intent to deceive, make an official statement, "I did not grab the breast of SPC X.", which statement was said false in that he grabbed the breast of SPC / E-4 X. and was then known by him to be so false (21 December 2011); and wrongfully engage in sexual contact, by touching the breast of SPC / E-4 X., without her permission and without legal justification (5 December 2011). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 October 2012 (5) Administrative Separation Board: Applicant waived consideration of his case by an administrative separation board. (6) Separation Decision Date / Characterization: 11 December 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 January 2011 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 20 years / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Cavalry Scout / 2 years, 19 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii / SWA / Afghanistan, 13 June 2011 to 1 April 2012 f. Awards and Decorations: ARCOM, NDSM, ACM-2CS, GWOTSM, ASR, OSR, NATO MDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet, dated 25 April 2012, shows the charges was the reason for the applicant's discharge. Summary Court-Martial, dated 9 May 2012, the applicant was found guilty of the following offenses: failure to obey a lawful order by CPT. X. not to go into the guard tower unless on duty as sentinel, made a false official statement made to Special Agent C., regarding the touching of SPC X. and wrongfully engage in sexual contact with SPC X. without legal justification. He was sentenced to reduction to PVT / E-1, forfeiture of $994 pay for one month and 24 days hard labor. Report of Mental Status Evaluation, dated 13 August 2012, the first two pages are not contained in the available record, page 3 relates while in service the applicant reported experiencing some mild PTSD symptoms, he met medical retention standards in accordance with AR 40~501, and did not warrant disposition through medical channels. He was cleared by behavioral health for separation under Chapter 14-12. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA progress notes dated, 13 June 2018, relates that the applicant relates the applicant had unspecified trauma and stressor related disorder (r/o PTSD) and unspecified depressive disorder. His patient health questionnaire score suggests moderately severe depression. He also experienced anger and sleep problems. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); self-authored statement (four pages); three support/ character statements; DD Form 214; VA Medical documents (52 pages); and Chapter 14 discharge packet (63 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. 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. 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 (under honorable conditions) 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 seeks relief contending, he requests an upgrade due to mitigating circumstances, prejudice and not having the correct facts. 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 overcoming this presumption through the presentation of 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 further contends, he found LTC J.T. to be very unfair and irrational; he never considered non-judicial punishment for a first offense. 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, his PTSD from Afghanistan has intensified and requires medical attention; he experienced bilateral knee problems, hearing loss and tinnitus; and during his deployment he was exposed to bum pits. The service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Furthermore, the applicant contends, during his Summary Court-Martial, he felt like the odds were stacked against him. 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. Lastly, the applicant contends, if given the opportunity, he would reenter the US Army and continue a career. At the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. The third party statements provided with the application speak highly of the applicant performance. However, the persons providing the character reference statements except one 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 6 February 2019, 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 AR20180004511 1