1. Applicant's Name: a. Application Date: 8 July 2019 b. Date Received: 1 August 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of an under other than honorable conditions discharge to honorable, a change to narrative reason for discharge to "Other," a change of reentry eligibility (RE) code to "1," and a change of rank from "PV1" to "SGT," to correct all military personnel records and to grant any other relief. The applicant seeks relief contending, in effect, that the Chapter 10 request does not comply with AR 635-200 and that the unit failed to consider a TBI in mitigation and that the post-service record shows that the applicant served honorably. The applicant contends that after having served faithfully, honorably, and with distinction on Active (AD) in the United States Army for almost 6 years, 11 months, and 29 days, the unit denied due process during the administrative separation process under AR 635-200, Chapter 10. The applicant's Chapter 10 process did not comply with AR 635-200 and the unit failed to examine whether the Traumatic Brain Injury (TBI) constituted mitigation evidence. The applicant believes the discharge was so inconsistent with the unusual practice and custom in similar cases in the USA that it constituted fundamental injustice, travesty of fairness, and clear denial of due process. 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, Alcohol Abuse, Anxiety Disorder NOS, and Generalized Anxiety Disorder NOS. The VA has diagnosed the applicant with Generalized Anxiety Disorder, Nightmare Disorder, and Concussion. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. Due to COVID-19, in a telephonic personal appearance hearing conducted at Arlington, VA on 23 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-3 / Under Other Than Honorable Conditions b. Date of Discharge: 7 July 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 May 2015 (2) Basis for Separation: The evidence of record contains a DD Form's 458, Charge Sheets which indicates on 7 May 2015, the applicant was charged with the following charges: Committing sexual contact upon Ms. X., to wit: touching her waist with his hand, by causing bodily harm to her 17 January 2015; Committing sexual contact upon Ms. X, to wit: touching her chest with his hand, by causing bodily harm to her 17 January 2015; Unlawfully grabbing the necklace of Ms, X., with his hand 17 January 2015; and Wrongfully soliciting Ms. X. to engage in prostitution, by offering her $50 to engage in sexual intercourse, so such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces 17 January 2015. (3) Recommended Characterization: Evidence of record shows the Company Commander recommended a characterization of service of general (under honorable conditions) and the intermediate Commander's recommended an under other than honorable conditions discharge. (4) Legal Consultation Date: 1 June 2015 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 9 June 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 July 2012 / 6 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B14, Military Police / 6 years, 11 months, 29 days d. Prior Service / Characterizations: RA, 9 July 2008 to 25 July 2012 / HD e. Overseas Service / Combat Service: SWA / Iraq (1 August 2009 to 21 May 2010) Afghanistan (19 May 2012 to 15 February 2013) f. Awards and Decorations: ARCOM-2, AAM, AGCM, NDSM, ACM-CS, ICM-CS, GWOTSM, MOVSM, NOPDR, ASR, OSR-2 g. Performance Ratings: 1 October 2012 to 30 September 2013, Fully Capable 1 October 2013 to 30 September 2014, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report's, dated 9 April 2015 and 14 April 2015, which indicate the applicant was the subject of investigation for abusive sexual contact (adult). Several Agent's Investigation Reports. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 24 September 2013, indicates the applicant was screened for PTSD and mTBI. The applicant screen a score of negative for PTSD and 1/2 positive for mTBI. The applicant was referred for a comprehensive mild Traumatic Brain injury evaluation. A comprehensive evaluation revealed no lingering or impairing symptoms consistent with a concussive event. The applicant demonstrated psychiatric stability and a high level of professionalism. The applicant was responsible for his behavior, could distinguish from right and wrong, and possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and 25 Exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since his discharge he has obtained an Associated of Arts Degree, started a new business, gotten married, and is raising his child. 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. 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 "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 through legal counsel requests an upgrade of his under other than honorable conditions discharge to honorable, a change to his narrative reason for discharge to "Other," a change of his reentry eligibility (RE) code to "1," and a change of his rank from "PV1" to "SGT," and to correct all of his military personnel record and to grant any other relief. 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 several acts of significant achievements and valor; however, it did not support the issuance of an honorable discharge by the separation authority at the time of his discharge. The applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable characterization of service. The narrative reason specified by Army Regulations for a discharge under this chapter is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." 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 4. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that his Chapter 10 request does not comply with AR 635- 200 and that the unit failed to consider his TBI in mitigation and that his post-service record shows that he served honorably. The applicant contends that after having served faithfully, honorably, and with distinction on Active (AD) in the United States Army for almost 6 years, 11 months, and 29 days, his unit denied him his due process right during the administrative separation process under AR 635-200, Chapter 10. He contends his Chapter 10 process did not comply with AR 635-200 and the unit failed to examine whether his Traumatic Brain Injury (TBI) constituted mitigation evidence. He believes his discharge was so inconsistent with the unusual practice and custom in similar cases in the USA that it constituted fundamental injustice, travesty of fairness, and clear denial of due process. The applicant's contentions were noted; however, the service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant's post-service accomplishments were noted and the applicant is to be commended on his accomplishment. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case- by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member's overall character. As for the applicant's contentions that unit failed to examine whether his Traumatic Brain Injury (TBI) constituted mitigation evidence. The Report of Mental Status Evaluation, dated 24 September 2013, indicates the applicant was screened for PTSD and mTBI. The applicant screen a score of negative for PTSD and 1 / 2 positive for mTBI. The applicant was referred for a comprehensive mild Traumatic Brain injury evaluation. A comprehensive evaluation revealed no lingering or impairing symptoms consistent with a concussive event. The applicant demonstrated psychiatric stability and a high level of professionalism. The applicant was responsible for his behavior, could distinguish from right and wrong, and possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings. It appears the applicant's chain of command determined he knew the difference between what was right and wrong as indicated by the mental status evaluation. 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. Additionally, the applicant requests that his rank be restored and to correct all of his military personnel record and to grant any other relief.. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank or to correct other things in his personnel records. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. 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): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s) / Counsel: 10. BOARD DETERMINATION: Due to COVID-19, in a telephonic personal appearance hearing conducted at Arlington, VA on 23 March 2020, 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 AR20190010960 6