1. Applicant's Name: a. Application Date: 31 July 2019 b. Date Received: 12 August 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant seeks relief contending, in effect, the reason for his behavior on active duty was due the severity of his PTSD. 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 PTSD. The applicant is 70% service-connected from the VA. 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 9 September 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: 24 October 2018 c. Separation Facts: Yes (1) Date Charges Were Preferred: 28 March 2018 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 28 March 2018, at or near Fort Bragg, NC, the applicant was charged with violating a lawful general regulation, by wrongfully engaging in a sexual relationship with SPC E.M., between (1 September 2015 and 31 January 2016); at or near Rome Italy, willfully and wrongfully damage by throwing a hair straightener, with a value of less than $500, the property of Miss E.M., (26 May 2017); at or near Baumholder, Germany, commit a sexual act upon Miss E.M., penetrating her vulva with his finger when the accused knew or reasonably should have known that Miss E.M. was asleep, with intent to abuse, humiliate, harass or degrade any person or to arouse or gratify the sexual desire of any person between (1 July 2016 and 31 July 2016); at or near Baumholder, Germany, commit sexual contact upon Miss E.M., by placing his penis upon Miss E.M.'s face, when the accused knew or reasonably should have known that Miss E.M. was asleep, unconscious, or otherwise unaware that the sexual contact was occurring, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person between (1 July 2016 and 31 July 2016); at or near Baumholder, Germany, commit a sexual act upon Miss E.M., by penetrating Miss E.M.'s mouth with his penis when the accused knew or reasonably should have known that Miss E.M. was asleep between (1 July 2016 and 31 July 2016); at or near Baumholder, Germany, commit a sexual act upon Miss E.M., by penetrating her anus with his finger when the accused knew or reasonably should have known that Miss E.M. was asleep, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person between (1 July 2016 and 31 July 2016); at or near Baumholder, Germany, commit a sexual act upon Miss E.M., by penetrating her mouth with a black sex toy when the accused knew or reasonably should have known that Miss E.M. was asleep, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person between (1 July 2016 and 31 July 2016); at or near Baumholder, Germany, wrongfully and knowingly photograph the private area of Miss E.M., without her consent, and under circumstances in which Miss E.M. had a reasonable expectation of privacy between (1 July 2016 and 31 July 2016); unlawfully strike Miss E.M., in the ribs with his fist between (7 July 2016 and 31 July 2016); unlawfully strangle Miss E.M., by placing his hands on her neck (10 October 2016); unlawfully shove Miss E.M., with his hands (20 June 2017); unlawfully strike Miss E.M., in her face with his fist (2 August 2017); unlawfully batter Miss E.M., by pushing her out the window with his hands (2 August 2017); wrongfully have sexual intercourse with Miss E.M., a woman not his wife, such conduct being of a nature to bring discredit upon the armed forces on more than one occasion between (1 September 2015 and 4 August 2017); at or near Hope Mills, NC, orally communicate to his Miss A.B., a child under the age of 16 years, certain indecent language, "if your mom thinks she'll get one up over me, I'll fucking kill myself," "your mom is a dumb bitch," "can't collect from the dead," "she thinks she got the last laugh, you know it's gonna be funny when I blow my head off," or words to that effect, such conduct being of a nature to bring discredit upon the armed forces between (20 June 2015 and 20 November 2015). (3) Recommended Characterization: The applicant's unit commander recommended disapproval of the Chapter 10 request. The intermediate and senior intermediate commanders recommended approval of a Chapter 10 request with an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: NIF, government regularity is presumed in the discharge process. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 October 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 June 2015 / Indefinite b. Age at Enlistment / Education / GT Score: 35 years / 1 year college / 120 c. Highest Grade Achieved / MOS / Total Service: E-7 / 91X40, Maintenance Supervisor / 16 years, 5 months, 25 days d. Prior Service / Characterizations: RA, 30 April 2002 to 29 April 2007 / HD RA, 30 April 2007 to 15 February 2011 RA, 16 February 2011 to 1 June 2015 / HD e. Overseas Service / Combat Service: Korea / SWA / Iraq, 26 November 2004 to 10 November 2006 / Afghanistan x4, 9 October 2007 to 7 February 2008, 7 May 2009 to 17 April 2010, 21 September 2011 to 17 September 2012 and 29 August 2014 to 15 October 2014 f. Awards and Decorations: MSM, ARCOM-5, AAM-4, NDSM, ACM-4CS, ICM-CS, GWOTSM, KDSM, NOPDR-3, ASR, OSR-7, NATO MDL-2, JMUA-2, MUC-2, ASUA g. Performance Ratings: 10 September 2015 to 14 December 2017 / Far Exceeded Standard h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA rating decision, dated 4 June 2019, revealed the applicant was service connected for PTSD with alcohol use disorder (also claimed as anxiety disorder and major depression) has been established as directly related to military service and assigned an evaluation of 70 percent disabling. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214 (two pages); discharge orders 283-0002; VA compensation documents (seven pages); VA rating decision (19 pages); VA disability compensation award (two pages); VA disabled veterans application for vocational rehabilitation (three pages); VA information documents (three pages); LHI, initial PTSD disability benefits questionnaire (19 pages); and 44 character statements. 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 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 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 the characterization of service from under other than honorable conditions to honorable. 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 an offense punishable under the UCMJ with a punitive discharge. 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 achievement and valor to include combat tours x5; however, it did not support the issuance of a general or an honorable discharge by the separation authority at the time of separation. The applicant seeks relief contending, the reason for his behavior on active duty was due the severity of his PTSD. The applicant provided a VA document that shows he was service connected for PTSD with alcohol use disorder (also claimed as anxiety disorder and major depression) has been established as directly related to military service and assigned an evaluation of 70 percent disabling. Further, the applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that PTSD was the reason for his behavior on active duty. The third party statements provided with the application speak highly of the applicant. However, the persons providing the character reference statements were in and some were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 9 September 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 AR20190013241 1