1. Applicant's Name: a. Application Date: 29 June 2020 b. Date Received: 2 July 2020 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 general (under honorable conditions). The applicant seeks relief contending, in effect, his discharge was inequitable because it was based an isolated incident during 74 months of honorable service. He was a highly motivated infantry team leader with a good career path. His incident of misconduct should not outweigh all of his other achievements. He desires to receive VA benefits for injuries sustained in Service. He requests his rank be reinstated. 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 related to the legal stressors and separation. The applicant is not service connected and VA records are void of contact. 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 6 January 2021, 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 (Civil Conviction) / AR 635-200, Chapter 14, SEC II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 29 November 2018 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 25 July 2018 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he was convicted by a civil court for use of a chemical weapon, Title 18 United States Code, Section 229 (11 June 2018); and the following misconduct may not be used for separation but may be considered for characterization of service in accordance with paragraphs 1-15 and 3-5 of AR 635-200; he did knowingly possess within the special maritime and territorial jurisdiction of the United States, to wit: Fort Polk military installation, material which contained 43 images of child pornography as defined in Title 18, United States Code, Section 2256(8), that involved a prepubescent minor (12 April 2017). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 10 September 2018, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions). On 14 September 2018, the separation approving authority disapproved the applicant's conditional waiver (5) Administrative Separation Board: On 25 September 2018, the applicant was notified to appear before an administrative separation board and advised of his rights. On 19 October 2018, the administrative separation board convened. The applicant did not appear due to civilian confinement. Applicant's counsel was present. The board recommended the applicant be discharged with issuance of a characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 2 November 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 June 2012 / 6 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years / 10 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan x2, 7 July 2013 to 4 March 2014 and 27 September 2015 to 18 June 2016 f. Awards and Decorations: ARCOM-2, AM-2, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, NATO MDL-2, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report (CID), dated 12 September 2017, revealed the applicant was under investigation for Prohibited Activities. 18 USC 229 (Federal (USC/CFR), Unlawful Act 18 USC 842 (Federal (USC/CFR), Possessing, Receiving or Viewing Child Pornography (Federal (USC/CFR) - 18 USC 2252A), Obstruction of Justice (UCMJ - Article\134), Larceny of Government Weapons/Munitions (UCMJ - Article 121, False Official Statement (UCMJ - Article 107), Weapons Violations - Carrying /Possessing/Concealing (18 USC 930) (UCMJ - Article 134), Fake Explosive Device (LA RS 14:54.5) (State -Article 134), Manufacture and Possession of a Bomb (LA RS 14:54.3) (State - Article 134) and Failure to Register Firearm on Military Installation (UCMJ - Article 134). The applicant received several negative counseling statements regarding conditions on liberty and being notified of pending separation action. i. Lost Time / Mode of Return: Civilian confinement for 591 days, 13 April 2017 to 29 November 2018. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 20 July 2018, relates the applicant was evaluated while incarcerated at the Lafayette Parish Correctional Center. He was diagnosed with an adjustment disorder, with anxiety, imprisonment or other incarceration, personal history of military deployment, and alcohol use disorder, moderate. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214; and Enlisted Record Brief. 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. 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 general (under honorable conditions). 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. By the misconduct (civil conviction), the applicant diminished the quality of his service below that meriting a general (under honorable conditions) or an honorable discharge at the time of separation. 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 applicant seeks relief contending, his discharge was inequitable because it was based an isolated incident during 74 months of honorable service; and his incident of misconduct should not outweigh all of his other achievements. The service record indicates the applicant committed many 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 record of evidence shows at the time of discharge the applicant had completed 58 months of service, not 74 months as he alleges. The applicant further contends, he was a highly motivated infantry team leader with a good career path. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant desires to receive VA benefits for injuries sustained in Service. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. The applicant requests his rank be reinstated. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank. The Board may only change the characterization of service 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. 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 6 January 2021, 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 / 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 AR20200009665 3