1. Applicant's Name: a. Application Date: 1 August 2018 b. Date Received: 9 August 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant seeks liberal consideration for an upgrade request. The applicant deployed multiple times during the career and acquired PTSD. The applicant was never treated by the Army. Although the applicant made the condition known to the Army, the applicant received treatment from civilians, while the Army kept deploying. The discharge resulted when an ex-wife made false accusations against the applicant. During the court-martial process, the applicant's PTSD was such that led to the military defense counsel to have the applicant apply for resignation from service rather than fight the charges. When the complainant later refused to testify without pleading the Fifth on her behalf, the applicant's resignation was approved. The UOTH discharge was the result of PTSD and erroneous legal advice. 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 Narcissistic Personality, Intermittent Explosive Disorder, Adjustment with Disturbance of Emotions and Conduct, Personality Disorder, Alcohol Abuse, and Depression. The VA has diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and PTSD. 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 28 June 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: In Lieu of Trial by Court-Martial / AR 600-8-24, Paragraph 3-13 / DFS / NA / Under Other Than Honorable Conditions b. Date of Discharge: 19 June 2012 c. Separation Facts: (1) DD Form 458, Charge Sheet: On 5 August 2011, the applicant was charged with the following and was arraigned by a general court-martial (however, the proceedings were terminated on 5 January 2012, and charges were dismissed upon the approval of his voluntary request for resignation for the Good of the Service, UP AR 600-8-24, Chapter 3, Paragraph 3-13, per General Court-Martial Order Number 20, dated 25 September 2012): Charge I: Two specifications of violating Article 120, UCMJ, for causing Ms. X. to engage in sexual act, which she could not avoid or escape the sexual act on two separate occasions on 12 December 2009. Charge II: Two specifications of violating Article 128, UCMJ, for unlawfully striking Ms. X on two separate occasions on 7 October 2006, and 19 March 2010. Charge III: Violation of Article 134, UCMJ, while being a married man, wrongfully having sexual intercourse with Ms. X., a woman not his wife on divers occasions between 1 May 2009 and 30 June 2009, such conduct was to the prejudice and good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. (2) Basis for Separation: Pursuant to applicant's request for discharge under the provisions of Chapter 3, AR 600-8-24, Resignation for the Good of the Service in lieu of Trial by General Court-Martial. (3) Recommended Characterization: Under Other Honorable Conditions discharge (4) Legal Consultation Date: 8 August 2011, and 20 September 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date/Characterization: On 1 June 2012, the Deputy Assistant Secretary of the Army (Review Boards) accepted and approved the resignation for the good of the service in lieu of trial by a general court-martial / Under Other Than Honorable Conditions. 4. SERVICE DETAILS: a. Date / Period of Entered AD: 16 December 2002 / Indefinite b. Age at Appointment / Education / GT Score: 22 / Bachelor of Science / NA c. Highest Grade Achieved / MOS / Total Service: O-4 / 37A Psychological Operations / 21 years, 3 months d. Prior Service / Characterizations: ARNG (25 March 1991 to 7 May 1991) / NA IADT (8 May 1991 to 9 August 1991) / HD ARNG (10 August 1991 to 6 June 1993) / HD ARNG (7 June 1993 to 21 January 1994) / NA ADT (22 January 1994 to 18 June 1994) / HD ARNG (19 June 1994 to 9 April 1995) / NA ADSW (10 April 1995 to 30 September 1995) / HD ARNG (1 October 1995 to 1 May 1996) / HD USAR (IRR) (2 May 1996 to 27 February 2002) / NA OEF (28 February 2002 to 22 November 2002) / HD USAR (23 November 2002 to 15 December 2002) / NA e. Overseas Service / Combat Service: SWA / Afghanistan (28 September 2002 to 4 November 2002) (per DD Form 214, dated 22 November 2002), Iraq (8 September 2005 to 9 September 2006), (2 July 2010 to 31 July 2011) f. Awards and Decorations: BSM-2; ARCOM-4; AAM-2; ARCAM-2; NDSM; ACM-CS; ICM-2CS; GWOTEM; GWOTSM; AFEM; ASR; OSR-2; CIB; MUC g. Performance Ratings: 10 OERs rendered during period of service under current review: 16 December 2002 thru 22 July 2003, Outstanding Performance, Must Promote 23 July 2003 thru 27 February 2004, Outstanding Performance, Must Promote 1 October 2004 thru 31 December 2004, Outstanding Performance, Must Promote 1 January 2005 thru 31 December 2005, Outstanding Performance, Must Promote 1 January 2006 thru 14 November 2006, Satisfactory Performance, Promote 27 July 2007 thru 26 July 2008, Outstanding Performance, Must Promote 27 July 2008 thru 7 January 2009, Outstanding Performance, Must Promote 8 January 2009 thru 16 January 2011, Outstanding Performance, Must Promote 17 January 2011 thru 20 May 2011, Outstanding Performance, Must Promote 21 May 2011 thru 20 May 2012, RFC, Unsatisfactory Performance, Do Not Promote h. Disciplinary Action(s) / Evidentiary Record: Two voluminous Ad Hoc case files with Charge Sheet described at the preceding paragraph 3c(1) and its associated documents. Discharge Orders i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Behavioral Care medical records (Initial Psychiatric Evaluation), dated 5 February 2007, 9 August 2007, 15 November 2007, and 25 September 2008, indicate the applicant was receiving further treatment for PTSD, and an "Axis I" diagnosis of PTSD, and depression. Memorandum, dated 19 December 2011, indicates the applicant had clinical diagnose of "AXIS I: Adjustment Disorder with Anxiety and Depressed Mood." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 1 August 2018, with attorney-authored brief and applicant-authored statement; GCM Order Number 20, dated 25 September 2012; four DD Forms 214 for 22 November 2002, 30 September 1995, 18 June 1994, and 9 August 1991; medical records (behavioral care, dated 5 February 2007, 9 August 2007, 15 November 2007, and 25 September 2008); GAF; memorandum, dated 25 May 2010, with Pre-Deployment Health Assessment; Deployed Soldier Risk Assessment, dated 11 August 2011; Memorandum, dated 19 December 2011; civilian court document; Attorney-at-Law letter, dated 6 December 2011; Law Firm letter, dated 12 January 2012; applicant's request for resignation, dated 20 September 2011; DASA decision memorandum with ALARACT, dated 1 June 2012; and letter of support, dated 15 January 2018. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, he became an owner of an ice cream franchise; he was awarded 2015 upcoming new small business of the year from a Small Business Chamber of Commerce; he is a member of several local charitable organizations; and he participates in community events. 7. REGULATORY CITATION(S): Army Regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers. Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct. 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 "DFS" as the appropriate code to assign officers who are discharged under the provisions of AR 600-8-24, Chapter 3, paragraph 3-13, for "In Lieu of Trial by Court-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 his under other than honorable conditions discharge to honorable. The applicant's available record of service and the issues and documents submitted with his application were carefully reviewed. The record indicates the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24. The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service. The record confirms that by the misconduct, the applicant diminished the overall quality of his service below that meriting an honorable. In consideration of the applicant's service accomplishments and quality of his service prior to the 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. The applicant's contentions regarding his behavioral health issues which involved being diagnosed with PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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. Insofar as the applicant's contentions that the discharge was unjust because his discharge was the result of his ex-wife's false accusations against him, his PTSD, and having received erroneous legal advice, 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 was unjustly discharged. The applicant's statements through his counsel 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. The service record does not reveal any evidence of arbitrary or capricious actions by the applicant's command. It appears that 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 June 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 AR20180012801 1