1. Applicant's Name: a. Application Date: 11 June 2018 b. Date Received: 27 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable and a change to narrative reason for discharge to medical retirement. The applicant also request that rank be restored to E-5. The applicant seeks relief contending, in effect, that the discharge was improper because the misconduct and serious offense the applicant was accused of was determined by a civilian court to be false as the applicant was innocent of all charges. The loss of rank and the narrative reason for discharge was based on the incident that was proven false and it was the only incident during 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 anxiety and depressed mood/with mixed emotional features, Chronic PTSD, Major Depressive Disorder, recurrent, moderate, Panic Disorder with agoraphobia, Parent-Child Problem, and Partner-Relational Problem. The applicant is 70% service-connected for PTSD from the VA. The VA has also diagnosed the applicant with Major Depressive 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 5 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, Paragraph 14-12c / JKQ / RE-4 / Under Other than Honorable Conditions b. Date of Discharge: 10 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 November 2014 (2) Basis for Separation: The applicant was informed of the following reasons: On divers occasion, he raped and sexually abused his adopted daughter, a child under the age of 16, by forcing her to engage in various sexual acts up to and including penetrative sexual intercourse between 9 September 2009 and 31 August 2013; He attempted to keep his abusive conduct secret by threatening, on multiple occasions, both her and her brother, his adopted son, also a child under the age of 16, with death or significant bodily harm; He was also physically violent towards the children, on at least one occasion assaulting his adopted son by kicking him in the ribs while wearing combat boots; and During part of this time he was also engaged in an adulterous sexual relationship with a woman other than his wife. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 17 November 2014 (5) Administrative Separation Board: The applicant waived consideration of his case by an administrative separation board. (6) Separation Decision Date / Characterization: 2 December 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 September 2011 / 5 years b. Age at Enlistment / Education / GT Score: 28 / GED / 117 c. Highest Grade Achieved / MOS / Total Service: E-5 / 29E10, Electronic Warfare Specialist; 21W10, Carpentry/Masonry Specialist / 11 years, 5 months, 11 days d. Prior Service / Characterizations: USAR, 30 June 2003 to 6 October 2003 / NA ADT, 7 October 2003 to 27 February 2004 / HD USAR, 28 February 2004 to 2 June 2004 / NA RA, 3 June 2004 to 22 November 2005 / RA, 23 November 2005 to 6 September 2011 / HD e. Overseas Service / Combat Service: SWA / Iraq (29 March 2005 to 26 March 2006 and 16 February 2007 to 14 May 2008) f. Awards and Decorations: ARCOM-2, AAM-2, MUC, VUA, AGCM-2, ACM-2CS, NDSM, GWOTSM, NOPDR-2, ASR, OSR-2, NATOMDL, CAB g. Performance Ratings: 7 April 2011 to 6 April 2012, Fully Capable 7 April 2012 to 6 April 2013, Fully Capable 7 April 2013 to 6 April 2014, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Commander's Inquiry regarding an alleged act of adultery, dated 23 October 2013. Summarized Record of Proceedings Under Article 15, UCMJ, dated 22 July 2014, for failure to go at the time prescribed to his appointed place of duty on 9 May 2014, 16 July 2014 and x2 21 July 2014, and disobeying a lawful order from a noncommissioned officer on 12 May 2014 and between 16 July 2014 and 21 July 2014. The punishment consisted of extra duty for 9 days. Lakewood Police Department Supplemental Incident Report. Military Police Report, dated 20 October 2014, which shows the applicant was the subject of investigation for civilian charge of rape of a child 1st and 2nd degree. CID Report, dated 28 October 2014, which shows the applicant was the subject of investigation for rape of a child. Military Police Report, dated 21 November 2014, which shows the applicant was the subject of investigation for harassment. Negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: Confinement by civilian authorities for 5 days (20 October 2014 to 24 October 2014). j. Diagnosed PTSD / TBI / Behavioral Health: Medical Evaluation Board Proceedings and Medical Evaluation Board Narrative Summary. It was noted that the following conditions did not meet Army retentions standards IAW AR 40-501, Post-Traumatic Stress Disorder, Chapter 3-33b and c and Major Depressive Disorder, recurrent, moderated with anxious distress; Chapter 3-32b and c. Informal Physical Evaluation Board (PEB) Proceedings, dated 8 July 2014 shows that the board found that the applicant was physically unfit and recommended a rating of 50 percent and that his disposition be placed on the temporary disability retired list (TDRL) and with a reexamination during April 2015. Disability 1 for post-traumatic stress disorder and major depressive disorder (MEB Dx 1, 2). It was noted that the condition stem from exposure to combat stressors while he was deployed to Afghanistan in 2008 (V1/V3-Yes, CAB). Despite treatment, there had been insufficient improvement for him to return to unrestricted duty. He continued to have sleep disturbance, depressive symptoms, anxiety, re-experiencing, avoidance behavior, hypervigilance, and other manifestations which adversely impacted his functioning. Report of Mental Status Evaluation, dated 30 October 2014, which shows the applicant was diagnosed with an Axis I, for 309.81 post-traumatic stress disorder, 296.32 major depressive disorder, recurrent, moderate. It was noted that he could understand and participate in administrative proceedings and appreciated the difference between right and wrong. The applicant screened positive on the PTSD questionnaire and was given a comprehensive evaluation and was in the MEB process for post-traumatic stress disorder. The applicant also screened positive on the mTBI screener and was cleared from a mTBI in December 2008 after returning from deployment and denied any difficulties related to those incidents. Letter from the Department of Veterans Affairs showing the applicant had a proposed service connected disability rating of 50 percent for post-traumatic stress disorder and major depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; copy of his statement in support of his claim to the Department of Veterans Affairs; court documents from the Superior Court of Washington, County of Pierce; Informal Physical Evaluation Board (PEB) Proceedings; proposed letter of benefits from the Department of Veterans Affairs; and DD Form 214. 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. 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, 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 an upgrade of his under other than honorable conditions discharge to honorable and a change to his narrative reason for discharge to medical retirement. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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 evidence of record shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The appropriate RE code is 3. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that his discharge was improper because the misconduct and serious offense he was accused of was determined by civilian court to be false as he was innocent of all charges. The loss of his rank and the narrative reason for his discharge was based on the incident that was proven false and it was the only incident during his service. The documents submitted by the applicant dated, 25 September 2015, 9 months after his discharge showing he was acquitted of all charges in civilian court were noted; however, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper. In fact, his numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 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. The applicant also request that his rank be restored to E-5. However, the applicant's requested change to his rank 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. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 5 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 AR20180015842 1