1. Applicant's Name: a. Application Date: 7 November 2018 b. Date Received: 13 November 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 general (under honorable conditions). The applicant seeks relief contending, in effect, that the discharge was improper being it was based on an "Outcast" search of the vehicle. The applicant contends that another Soldier was used by the chain of command to set the applicant up in order for MPI to search a POV. The chain of command placed the applicant in confinement between January and April prior to discharge. 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. The applicant does not have any VA records available for review. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 18 March 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: 19 April 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 January 2018 and 27 February 2018 (2) Basis for Separation: The evidence of record contains two DD Form's 458, Charge Sheets which indicates on 22 January 2018, the applicant was charged with the following: Violation of Article 86, by failing to go at the time prescribed to his appointed place of duty on 17 January 2018; Violation of Article 91, by disobeying a lawful order from 1SG D.E.M., a senior noncommissioned officer, to pack his bag to go to the field with his unit on 16 January 2018 and was disrespectful in language toward SGT K.K., a noncommissioned officer, by saying to her "what the fuck? Hell no! You're telling me I can't wear my own cloths?! Who the fuck says that? I don't give a fuck! This is fucking bullshit, y'all are trippin," or words to that effect, while SGT K was reading a counseling statement to him; Violation of Article 134, by wrongfully communicating to PV2 T.T., a threat to injure SPC D.L., by shooting him on 11 January 2018; The evidence of record contains a second DD Form 458 which indicates on 27 February 2018, the applicant was charged with the following: Violation of Article 92, by disobeying a lawful order on 18 January 2018, by COL K.W.M., Commander, Headquarters, US Army Garrison, Fort Stewart, Georgia, by wrongfully having in his possession, within the containment area of Fort Stewart, a privately owned firearm which was not registered with the Fort Stewart Provost Marshal/Directorate of Emergency Services as required; and Violation of Article 112a, by wrongfully using marijuana between 12 December 2017 and 10 January 2018. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 March 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 3 April 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2016 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 1 year, 11 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Pretrial confinement documents to include confinement order. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 4 April 2018, indicates the applicant was diagnosed with an Axis I for Adjustment Disorder. It was noted that the applicant was mentally sound and able to appreciate any wrongfulness in his conduct, and conform his conduct to requirements of the law. He was considered accountable for his actions and subject to the normal channels of counseling and discipline. He had the mental capacity to understand and participate in board or other administrative proceedings. The applicant was cleared from a Behavioral Health perspective for administrative separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with his 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 general (under honorable conditions). 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 several 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. The applicant seeks relief contending that his discharge was improper being it was based on a "Outcast" search of his vehicle. The applicant contends that another Soldier was used by his chain of command to set him up in order for MPI to search his POV. His chain of command placed him in confinement between January and April prior to his discharge. The applicant's contentions were noted; 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper. 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 18 March 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 AR20180016374 1