1. Applicant's Name: a. Application Date: 30 October 2018 b. Date Received: 2 November 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, though counsel, requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, the applicant was administratively discharged based upon an unfounded allegation of sexual assault. The allegation was made after the applicant filed a civil lawsuit against Mr. W. F. Afterwards, Mr. W. F. and friends forwarded to the Army CID an allegation of non-consensual touching. The applicant vigorously denied the allegations. The applicant's command found the allegations to be credible and unilaterally administratively discharged the applicant without the opportunity to have a hearing. An allegation of sexual assault is a serious matter. The decision by the Army to proceed without a UCMJ prosecution strongly suggests that the Army lacked sufficient evidence to prove the applicant's guilt. The applicant was denied basic due process. If the applicant was to be administratively discharged, then it should be upgraded to honorable. The characterization, without a credible basis, is a permanent stain on the applicant's military service. The applicant was unfairly and erroneously administratively discharged. The applicant was accused of inappropriate sexual contact, however, the allegation was made after the applicant filed a lawsuit against the accuser's friend. Neither the local authorities nor the United States Army had sufficient confidence in the strength of their evidence to prosecute criminally. The applicant was not offered an administrative hearing and adamantly denied the charges. 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 Alcohol Intoxication, Adjustment Disorder, Personality Disorder, and Borderline Personality Disorder. The applicant is 100% service-connected for Dissociative Amnesia from the VA. The VA has also diagnosed the applicant with Major Depressive Disorder, Obsessive Compulsive Disorder, and Mood Disorder. 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 21 August 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 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 1 March 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 January 2017 (2) Basis for Separation: The applicant was informed of the following reasons: on or about 14 May 2016, he put Ms. R B's hand on his genitalia, this constitutes a sexual contact, and he caused this contact, without her consent, in violation of article 120, UCMJ. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 18 January 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 January 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 October 2014 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 123 c. Highest Grade Achieved / MOS / Total Service: E-3 / 68X10, Mental Health Specialist / 2 years, 4 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Alaska / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report - Final, dated 29 November 2016, reflects Trial Counsel, opined there was probable cause to believe the applicant committed the offense of Abusive Sexual Contact. No additional investigative efforts are required. Report of Mental Status Evaluation, dated 7 December 2016, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. Several Developmental Counseling Forms, for various acts of misconduct and for failure to meet body fat standards. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 1 December 2016, the examining medical physician noted in the comments section: Anxiety, since AIT, currently seeing behavioral health; and, seeing behavioral health for depression/ anxiety/sleep. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Legal brief; case separation documents. 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 his general (under honorable conditions) discharge to honorable. The applicant's record of service, 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. 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 contends he was separated for an unfounded allegation and was never afforded the opportunity to face his accuser. 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. 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 21 August 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 AR20180015496 1