1. Applicant's Name: a. Application Date: 13 February 2018 b. Date Received: 6 March 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a restoration of his rank. The applicant seeks relief contending, in effect, he is requesting an upgrade or at least an order for his retirement of 20 years in service for his case. He was in the United States Army for 20 years, since 18 October 1995 and he was removed out of the U.S. Army Reserves one month prior from receiving his 20 year letter. In those years, he was not found guilty of any criminal charges to have received an under other than honorable discharge with pay grade E-1. The applicant understands, he chose to be discharged instead of a trial by court-martial, but he does not believe his years in service and dedication to duty as a Soldier in the United States Army Reserves and prior Active Duty were considered when deciding what type of discharge to give him. The applicant states, he did not receive a fair investigation and case handling by his chain of command and legal in the United States Army Reserves in GTMO, Cuba. He was wrongfully accused of violations of the UCMJ without proof of any wrong doing and they conducted an improper investigation on the accusations. Upon the receipt of the Chapter 10, he did not understand what an "Other than Honorable" would mean and he never received any proper counseling to the discharge and a downgrade to E-1. He believes that they completed the paperwork to take away his rank and discharge him without his understanding and proper explanation of what he was receiving. The applicant states he was given less than 14 days of proper out-processing at Fort Bliss, where he was not able to receive the proper medical care that he required. He had to get his own personal lawyer and pay out of pocket over $5,000 in order to figure out what was going on with his case, which it led nowhere because of the Chapter 10. Because he was unable to process out appropriately, he was not able to take care of his PTSD that was caused by the Army Reserves and Active Army and his shoulder injuries he sustained in the Army Reserves. He states, he has severe PTSD and which became worse after his discharge due to his wrongful treatment from his unit and command at GTMO. His PTSD was sustained from Operation Iraqi Freedom Enduring Freedom as a Military Police Officer and Operation Enduring Freedom Afghanistan. He believes that a proper examination of his medical record should have been considered and an upgrade would allow him to properly be taken care of by the VA and be acknowledged for all the good years he gave the Army. He lost his GI Bill benefits, his SGLI, his insurance, and the chance to ever take care of his severe PTSD. The applicant further details his contentions in an allied self-authored statement submitted 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 PTSD. The applicant is 70% service-connected from the VA. 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 25 September 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: In Lieu of Trial by Court-Martial / AR 635- 200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 17 February 2017 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: 12 January 2017 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. The request for discharge reflects the applicant understood the charges preferred against him: Charge I: Violation of Article 80, UCMJ; Charge II: Violation of Article 93, UCMJ: and, Charge III: Violation of Article 120, UCMJ. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 2 February 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 June 2016 / 400 days (MOB) b. Age at Enlistment / Education / GT Score: 38 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-6 / 31B10, Military Police / 21 years, 4 months d. Prior Service / Characterizations: RA, 18 October 1995 - 17 October 2000 / HD USAR, 18 October 2000 - 30 September 2001 / NA OAD, 1 October 2001 - 30 September 2002 / HD USAR, 1 October 2002 - 9 February 2003 / NA OAD, 10 February 2003 - 3 February 2004 / HD USAR, 4 February 2004 - 17 February 2017 / UOTH (Concurrent Service) e. Overseas Service / Combat Service: Hawaii, SWA / Afghanistan (24 March 2003 - 23 December 2003); Kyrgyzstan/Afghanistan (10 July 2010 - 6 May 2011); Cuba (15 September 2013 - 30 May 2014) f. Awards and Decorations: ACM-CS, ARCOM-5, AAM-4, AGCM, ARCAM-4, NDSM- BS, GWOTEM, GWTSM, HSM, NCOPDR-2, ASR, OSR-4, ARCOTR, AFRMMD, MOVSM, NATOMDL g. Performance Ratings: 13 June 2016 - 10 February 2017 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report - Initial - Final, dated 18 August 2015, reflects and investigation established that PFC [redacted] reported the applicant inappropriately touched him and PFC [redacted] on multiple occasions. NCIS reported PFC [reacted] stated there were additional victims. PFC [redacted] stated since he arrived at Guantanamo Bay, the applicant grabbed his buttocks approximately 10-15 times in their temporary housing tent on Camp A. Additionally, PFC [redacted] stated the applicant attempted to grab his genitals during training at the Sally Port of Camp Echo, but utilized a gate as a barrier to block the contact. PFC [redacted] stated the applicant grabbed his buttocks multiple times in their temporary housing tent on Camp A, one of which occurred while he was asleep. PFC [redacted] further stated the applicant grabbed his genitals at Camp A, while on their way to a training class. SGT [redacted] stated the applicant grabbed his buttocks on multiple occasions in their temporary housing tent. SGT [redacted] further stated the applicant attempted to digitally penetrate his anus on one occasion in the housing tent; however, was unsuccessful as SGT [redacted] stated he had clothing on. The applicant was advised of his rights, which he invoked and requested legal counsel. The Chief of Military Justice, Joint Task Force-Guantanamo, Office of the Staff Judge Advocate, GTMO, opined probable cause existed to believe the applicant committed the offenses of Abusive Sexual Contact and Cruelty and Maltreatment. Military Justice Matter (memo), dated 16 November 2016, reflects in response to allegations of wrongdoing against the applicant the Naval Criminal investigative Service (NCIS) initiated an investigation on 15 September 2018. CID continued the Investigation. CID's investigation revealed probable cause for violations of' the UCMJ, including Article 120 (Sexual Assault). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Six DD Forms 214; DD Form 293; self-authored statement; case separation packet; 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states that although an honorable or general (under honorable conditions) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 his under other than honorable conditions discharge to honorable conditions and a restoration of rank. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant contends his rank should be restored. However, the applicant's requested change to the DD Form 214 does 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 never found guilty of the charges against him before he left the Army. However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen. In this case, the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial and the convening authority approved that request. The applicant contends he was not properly counseled on effects of requesting a chapter 10 or the reduction in rank. 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. Further, in the applicant's request for a discharge in lieu of trial by court-martial he acknowledged that he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. The applicant contends he was suffering from PTSD. 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 contends that he had good service which included a three 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. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, 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. 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 25 September 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 AR20180005998 3