1. Applicant's Name: a. Application Date: 20 February 2019 b. Date Received: 5 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to honorable and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, the discharge was inequitable, because the quality of service and capability to serve were satisfactory regardless of the development of mental impairment and family issues that led to civilian incarceration and the current discharge. (The applicant detailed the facts to consider, specifically, the quality of service and capability to serve.) The applicant contends the discharge was improper because the applicant was denied rights available to the applicant in an administrative discharge proceedings. (The applicant detailed the facts to consider.) In the applicant's affidavit, the applicant detailed the enlistment and subsequently commission; the high-tempo and demands of duties and assignments that led to family issues and behavioral health issues. The applicant expressed remorse and regrets of the actions, which led to losing the family. The applicant asserts while being incarcerated, the applicant made some progress. However, the current incarceration would adversely affect the applicant by being denied many opportunities and the help required. The applicant would become homeless without any income. The applicant is in need of VA benefits as the applicant continues to suffer from the physical and mental illnesses developed during twenty years of military service. An upgrade would have an incredible impact on life by receiving disability and veterans' benefits. 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 no BH diagnoses while on active duty. VA records only contain DoD content. 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 records review conducted at Arlington, VA on 10 January 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: Misconduct / AR 600-8-24, Paragraph 2-33 / JKB / NA / Under Other Than Honorable Conditions b. Date of Discharge: 2 February 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF, but according to the GCMCA's memorandum, dated 13 December 2010, Subject: GOSCA Recommendation on the Resignation in Lieu of Elimination pertaining to the applicant: On 27 April 2010, the applicant was indicted on three counts in the United States District Court for the Northern District of Georgia. The counts were possession, transportation and production of child pornography. The applicant remained in federal custody awaiting trial on the charges. On 9 February 2010, in Puerto Rico, the applicant pleaded guilty to separate charges of felony aggravated assault in the third degree stemming from molestation of his niece. On 19 March 2010, he was sentenced on the charges to five (5) years of probation and registration as a sex offender. On 15 September 2010, US Army Criminal Investigation Laboratory issued a report of the images recovered from computers and media seized from the home office of the applicant. On 24 September 2010, the National Center for Missing and Exploited Children (NCMEC) compared the images using the Child Recognition and Identification System (CRIS) based on excerpt from NCMEC Report and confirmed that hundreds of the images appeared to contain child victims who have been identified by law enforcement. Reports generated by CID were included as additional documentary evidence of the applicant's misconduct. (3) Recommended Characterization: The GOSCA recommended approval with an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: 8 October 2010, Requested Resignation in Lieu of Elimination Proceedings (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Active Duty: 14 September 1997 / 3 years, pursuant to AD Orders R08005001, dated 6 August 1997, and Orders R-08-005001A01, dated 22 February 2000, which amended the AD commitment period to an Indefinite period, effective 4 February 2000 b. Age at AD / Education / GT Score: 27 / MBA / NA c. Highest Grade Achieved / MOS / Total Service: O-5 / 3R QM, General and 50A, Force Development / 20 years, 21 days d. Prior Service / Characterizations: USAR (12 January 1991 to 16 January 1992) / NA RA (17 January 1992 to 15 May 1996) / HD "RES/QUAL" (16 May 1996 to 13 September 1997) / NA e. Overseas Service / Combat Service: Puerto Rico, SWA (NIF) / NIF f. Awards and Decorations: MSM-3; ARCOM-2; AAM-4; NDSM-2; SWASM-BSS; ASR; OSR; ARCOTR-3; AFRM-10-YR DEV-B; KLM g. Performance Ratings: 14 OERs: 14 September 1997 thru 13 September 1998, Promote Ahead of Contemporaries 14 September 1998 thru 25 October 1998, Outstanding Performance, Must Promote 26 October 1998 thru 8 May 1999, Outstanding Performance, Must Promote 9 June 1999 thru 8 June 2000, Outstanding Performance, Must Promote 9 June 2000 thru 19 May 2001, Outstanding Performance, Must Promote 15 December 2001 thru 30 September 2002, Outstanding Performance, Must Promote 1 October 2003 thru 12 June 2004, Outstanding Performance, Must Promote 13 June 2004 thru 12 June 2005, Outstanding Performance, Must Promote 13 June 2005 thru 12 June 2006, Outstanding Performance, Must Promote 13 June 2006 thru 11 June 2007, Outstanding Performance, Must Promote 12 June 2007 thru 11 June 2008, Outstanding Performance, Must Promote 12 June 2008 thru 26 April 2009, Outstanding Performance, Must Promote 27 April 2009 thru 30 August 2009, Outstanding Performance, Must Promote h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders i. Lost Time / Mode of Return: None/ NA j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 20 February 2019, with applicant-authored petition/statement; Table of Contents with listed attachments and exhibits. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Paragraph 1-22, stipulating on the types of administrative discharge/character of service states that when an officer's tour of AD is terminated due to discharge, the period of service will be characterized as "Honorable," "General Under Honorable Conditions)," "Under Other Than Honorable Conditions," or "Dishonorable" (warrant officers who do not hold a commission only), depending on the circumstances. The character of service will be predicated on the officer's behavior and performance while a member of the Army, and normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service. In pertinent part, paragraph 1-22c(4) stipulates that an officer will normally receive an "Under Other Than Honorable Conditions," when they are discharged following conviction by civilian authorities (see paragraph 2-33). However, paragraph 2-33 provides rules for processing involuntary release from active duty and termination of Reserve appointment of student officers and warrant officers attending branch orientation, familiarization courses, or warrant officer basic course. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), dated 10 December 2007, 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 "JKB" as the appropriate code to assign officer personnel who are discharged under the provisions of Army Regulation 600-8-24, paragraph 2-33, Misconduct. 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 to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The available record indicates 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant voluntarily requested resignation in lieu of elimination. 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 or general (under honorable conditions) characterization of service. The applicant provided no corroborating evidence demonstrating that the command's action was erroneous or sufficient evidence showing his service mitigated the unacceptable conduct, such that he should have been retained on Active Guard Reserve. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, 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 applicant contends he is entitled to an upgrade of his discharge because of mitigating circumstances which contributed to his misconduct. Specifically, he claims development of mental impairment and family issues resulted in his discharge. While the applicant may believe his stress at home and work was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. The applicant contends his discharge was improper, because he was denied his rights available to him in an administrative discharge proceedings. 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 sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. Further, the available record shows the applicant, in his request for resignation in lieu of elimination proceedings, elected to waive any right he had, either to appear before a board of officers with a legally qualified counsel, or to submit matters, in extenuation, rebuttal or defense concerning the allegations that led to his separation. The applicant's contentions regarding his behavioral health issues, were carefully considered. However, a careful review of the available record and the applicant did not provide any documentary evidence of behavioral health diagnosis by a competent medical authority, which would show the applicant's behavioral health issues symptoms existed. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., behavioral health diagnosis by a competent medical authority), for the Board's consideration because they are not available in the official record. The applicant contends that an upgrade of his discharge would allow his veterans' benefits, specifically, for compensation and healthcare. However, eligibility for veterans' benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Insofar as the applicant's contentions about becoming homeless and needing help, eligibility for housing supportive program benefits for Veterans, also, does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 877-424-3838 for free and confidential assistance. The applicant requests to change the reason for his separation; 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 2, paragraph 2-33 is "Misconduct," and the separation code is JKB. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The available 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. Based on the available 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 10 January 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 AR20190003410 1