1. Applicant's Name: a. Application Date: 12 September 2018 b. Date Received: 17 September 2018 c. Previous Reviews: 12 November 2014, AR20140000772 16 November 2015, AR20150007617 16 July 2018, AR20160019586, PA (Reconsideration based on applicant's new evidence labeled as Exhibit #1) d. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable, and to change the narrative reason for discharge and its corresponding codes. The applicant seeks relief contending, in pertinent part and in effect, since the last hearing on 16 July 2018, there have been some new substantial and relevant evidence that needs to be addressed as they apply to the character of discharge, General (Under Honorable Conditions) and the reentry code (4). The information, a letter labeled as "Exhibit #1," which the applicant received on 1 May 2013, explains exactly what happened between Ms. X and the applicant, from Ms. X's view point. It shows that the applicant did not deserve the character discharge of General (Under Honorable Conditions) with a reentry code of 4, by being coaxed by Ms. X. while under the influence of alcohol, in committing adultery that never had any intentions to perform with Ms.X. The letter shows the acts of being accused by Ms. X. that was investigated by a police department were not accurate and negatively used to slander the applicant's name and ruin employment with the US Army. The statements made by Ms. X. were used in hopes of having the applicant out of a child, B's, life forever other than paying child support. If the applicant could return to serving the country the applicant loves, the applicant would be on the first bus out. The "Exhibit #1" letter should be the determining factor on returning to military service. The discharge was also improper and inequitable, because it was based on incidents that occurred approximately ten months prior to the preferring of the charges listed on the Charge Sheet. It was based on evidence that was not accurate and for which the applicant had already been punished for, by writing a 2,000-word "RBI" on adultery, reading the RBI on adultery to subordinates, and teaching classes on said infractions. The Charge Sheet for adultery came soon after senior leaders, CPT X., 1SG X., and SSG X., were notified that the legal office was unable to proceed with chapter 14-12c, commission of a serious offense, an important factor explained by CPT P. on the request for preparation of a legal action. In the request for a FG Article 15, the statement that he "'recommends reduction of rank, SM has been constant problems to the unit since arrival,'" showed anger and frustration by the commander, because on the Mental Status Evaluation Request, he stated, "'SM has exhibited no patterns of misconduct prior to DUI.'" The applicant was also awarded the Army Good Conduct Medal (2nd Award). Without the Chapter 14-I2c process due to numerous errors and being punished for the offense, the senior leaders were angry, frustrated, and determined to get the applicant out of the US Army. The Chapter 14-12c occurred soon after being charged with driving under the influence. The applicant was also never cleared for mental status evaluation administrative action due to an incomplete neuropsychological screening, at the time. The screening required a referral for a complete evaluation to determine if an MEB referral was warranted due to positive findings of mTBI during screening-the command never allowed a determination if an MEB referral was warranted. The applicant was diagnosed with persistent insomnia and was being treated with an antidepressant medication with its side effects. The applicant was under the influence of that medication during the chapter 10 processing. The applicant was also diagnosed with an "Adjustment Disorder." The unit never considered the medical issues and how it had impacted life and decision-making. Since discharge, the applicant was employed full time helping and mentoring children and adults with intellectual and developmental disabilities, where the applicant received numerous praises. The applicant has earned an Associates of Arts degree with Latin Honors, maintained a 3.8 GPA and placed on the President's/Dean's list multiple semesters, and became a member of the Phi Theta Kappa Honor Society. The applicant received another Associate of Science degree and dual Bachelor's degrees. The applicant volunteers at a local league assisting with baseball for disabled children and adults, volunteers at a local dental office, which provides for the unprivileged for free dental work, and volunteers at local juvenile justice facilities with mentoring and teaching children. The applicant remarried and gained custody of a child. The former commander's (CPT P.'s), recent letter provides strong words explaining how the applicant is as a person and how he would highly recommend the applicant for the position, and recommends the applicant for reemployment consideration, which further indicates how it would be a great honor to don on the uniform once more. An upgrade of discharge and changes to the narrative reason for discharge and its corresponding codes, specifically the reentry code to 1 or 3, would enable the applicant to return to military service. 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 depressed mood, Abuse Spouse (applicant was the victim), mTBI, and Partner Relational Problem. The applicant is 20% 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 personal appearance hearing conducted at Arlington, VA on 6 May 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 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions (Note that this was upgraded to General (Under Honorable Conditions) by a PA hearing on 16 July 2018 (AR20160019586), but NIF.) b. Date of Discharge: 22 May 2013 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 1 May 2013, the applicant was charged with the following: The Charge: two specifications of violating Article 134, UCMJ, in that as a married man: Specification 1: he wrongfully had sexual intercourse with X., a woman, not his wife, between 14 June 2012 and 21 June 2012, and Specification 2: he wrongfully had sexual intercourse with PVT X., a woman not his wife, between 1 July 2012 and 1 October 2012. That such conducts were prejudicial to the good order and discipline in the armed forces and were of the nature that brought discredit upon the armed forces. (2) Legal Consultation Date: 6 May 2013 (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 (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 9 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 October 2011 / 4 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B10, Military Police / 6 years, 8 months, 9 days d. Prior Service / Characterizations: RA (14 September 2006 to 1 October 2011) / HD e. Overseas Service / Combat Service: Alaska, SWA / Iraq (20 February 2011 to 3 December 2011) f. Awards and Decorations: ARCOM; AAM-2; AGCM-2; NDSM; ICM-CS; GWOTSM; NCOPDR; ASR; OSR-2; NATO MDL g. Performance Ratings: 1 June 2011 thru 31 May 2012, Fully Capable 1 June 2012 thru 1 April 2013, Marginal h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1) and its associated documents. General Officer Memorandum of Reprimand (GOMOR), dated 2 May 2013, and its associated documents, indicates the applicant was reprimanded for driving under the influence of alcohol. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence consisting of his health records of March and April 2013, indicates he was in consultation with the behavioral health provider, and that "Psychiatric diagnosis or condition" was "deferred on axis I." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 12 September 2018, with listed evidence in block 8 and continued in block 14. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, since his discharge he was employed full time helping and mentoring children and adults with intellectual and developmental disabilities, where he received numerous praises. He has earned an Associates of Arts degree with Latin Honors. He maintained a 3.8 GPA, placed on the President's/Dean's list during multiple semesters, and became a member of the Phi Theta Kappa Honor Society. He received another Associate of Science degree, and dual Bachelor degrees. He volunteers at a local league assisting with baseball for disabled children and adults; he volunteers at a local dental office, which provides for the unprivileged for free dental work; and he volunteers at local juvenile justice facilities with mentoring and teaching children. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 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 general (under honorable conditions) discharge to honorable, and to change the narrative reason for his discharge and its corresponding codes. The applicant's available record of service, and 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 (under honorable conditions) discharge by the separation authority at the time of discharge. However, the under other than honorable conditions discharge was upgraded to general (under honorable conditions) at a recent personal appearance hearing by the Board (ADRB). The applicant's numerous contentions on bases that the discharge was unjust based on his new evidence (labeled as Exhibit #1) and that his discharge was also improper and inequitable, because it was based on incidents that occurred approximately 10 months prior to the preferring of the charges on the Charge Sheet; that it was based on inaccurate evidence for which was punished for, by writing a 2,000-word "RBI" on adultery, reading the RBI on adultery to subordinates, and teaching classes on said infractions; that the charge sheet for adultery came after his senior leaders were informed that legal was unable to proceed with chapter 14-12c, commission of a serious offense. His contentions were carefully considered. 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 was 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 evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The applicant's contentions regarding his behavioral health issues which impacted his life and decision-making, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues 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. The applicant requests to change the reason for his separation, and the reentry code; 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 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The third party statements provided with the application speak highly of the applicant's character and performance. However, the persons providing the character reference statements, which includes his former company commander's unsigned statement, 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. 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 and to change the narrative reason for his discharge. 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 Arlington, VA on 6 May 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20180013083 6