1. Applicant's Name: a. Application Date: 27 March 2018 b. Date Received: 2 April 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) / honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his current discharge is unfair because the other person involved was treated and charged the same; wherein he cooperated with the CID and agreed to testify against the other party. He believes the UOTH discharge has served its purpose. The basis for his discharge does not reflect the person that he is. He has learned his lesson. The experiences he gained from the military taught him to become a better civilian. An upgrade would allow him to be eligible for VA benefits. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with a behavioral health conditions of Adjustment Disorder, Anxiety and Depression. However, due to the nature of the behavioral health conditions, they do not mitigate the offenses. In a personal appearance hearing conducted at Sacramento, CA on 18 September 2018, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, post-service accomplishments, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. (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: 15 June 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 April 2016 (2) Basis for Separation: The applicant was informed of the following reasons: Between 24 March 2015 and 30 June 2015, the applicant wrongfully and knowingly broadcasted multiple recordings he knew, or reasonably should have known, displayed the private area of several individuals without their consent. On 29 June 2015, the applicant made a false official statement about whether he committed the acts to a US Army CID agent. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 7 June 2016 (5) Administrative Separation Board: Unconditionally waived pursuant to an offer to plead guilty, which was accepted by the Summary Court-Martial Convening Authority on 15 March 2016 (6) Separation Decision Date / Characterization: 25 May 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 August 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 22/ HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Specialist / 2 years, 9 months, 26 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: AAM; NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report, dated 9 July 2015, indicates the applicant was the subject of an investigation for indecent broadcasting and false official statement; Negative counseling statements for being informed of an involuntary separation action to separate him for commission of a serious offense. Offer to Plead Guilty, dated 13 March 2016, indicates the applicant offered to plead guilty to all charges and their specifications; in doing so, he waived his right to request an administrative separation board, and be recommended for an Under Other Than Honorable Conditions characterization of service in an administrative separation action initiated pursuant to AR 635- 200, paragraph 14-12c, on the basis of the charges and its specifications; and in exchange, the court-martial convening authority agreed to dismiss the charges and its specification after the applicant pleaded guilty in a FG Article 15 proceedings. FG Article 15, dated 6 April 2016, for violating Article 107, UCMJ, for making a false official statement on 29 June 2015, and 11 specifications of violating Article 120c, UCMJ, for indecent broadcasting. The punishment consisted of a reduction to E-1, 30 days of extra duty, and 30 days of restriction (suspended). Report of Mental Status Evaluation, dated 23 October 2015, indicates the applicant was psychiatrically cleared for any administrative active deemed necessary by his command. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Reports of Medical Examination and History, dated 23 February 2016, indicates the applicant noted behavioral health issues. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 27 March 2018; DD Form 214; memorandum, dated 17 February 2016; applicant- authored statement; and three character reference/supporting statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, since his discharge, he started volunteering at a non-profit church by mowing their lawn, serving people; helping with Mass, and other additional duties. He is currently in his second year in college, and was recently accepted to DePaul University. 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, paragraph 14-12c, 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 to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant's available record of service, and 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. By the incidents of misconduct, the applicant compromised the special trust and confidence placed in a Soldier, and he knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. 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 service record further indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. The applicant contends the discharge was unfair because the other party involved received the same discharge. 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 overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The third party statements provided with the application speak highly of the applicant's character. 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 applicant contends an upgrade would allow him to be eligible for VA benefits. However, eligibility for veterans' 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. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. Although the applicant did not raise any behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues symptoms existed. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 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): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Sacramento, CA on 18 September 2018, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, post-service accomplishments, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry code of 4. In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change / RE-3 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 AR20180005689 3