1. Applicant’s Name: a. Application Date: 2 November 2015 b. Date Received: 13 November 2015 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, the government never moved forward with the charges of conspiracy to commit an offense (Article 81) and failure to obey an order (Article 92) in 2010, instead he was discharged. The applicant contends that he deserves an upgrade because (1) his PTSD is a direct result of his military service and he was diagnosed with TBI, both of which detrimentally affected his life in the years following his deployment; (2) his paranoia caused by his PTSD was directly related to his association with the group of rouge MPs whose conduct ultimately led to criminal charges; (3) the discharge left no opportunity for him to defend the charges against himself or for a full investigation into his specific involvement; and, (4) based on his under other than honorable conditions characterization of service, the VA made its determination that his service was dishonorable. This has taken a huge toll on his family both emotionally and financially. The applicant further contends that he was seen at behavioral health for depression with anxiety and suicidal ideations prior to his deployment. It was concluded by a clinician that he was non-deployable due to his instability; however, despite these findings, he was deployed to Iraq. While deployed to Iraq, the applicant was exposed to, but not directly hit by explosive blasts, reported a head injury that occurred inside a military vehicle while he was not wearing headgear. Although he was not diagnosed with TBI, he reported headaches, memory loss, and difficulty concentrating to “protect and defend the Constitution.” It was during this time that the applicant was recruited as a member of this group, which the sole evidence against him was based on a CID interview conducted with the applicant during a time when the applicant was experiencing a loss of consciousness and temporary paralysis. The applicant states he was never evaluated for competency to stand trial nor was there an evaluation to determine his mental responsibility. The applicant further states that his PTSD is very real and well documented, a badge he received in exchange for his service to his country and that it ought to be worth something more than an other than honorable. The record indicates the applicant had a prior records review in 2012. Per the Board's Medical Officer, based on the available medical documentation, the applicant has a mitigating mental health condition for the offenses which led to his discharge from the Army. The applicant has been diagnosed with Traumatic Brain Injury. He has a history of multiple concussions (at least five) with associated loss of consciousness, nausea, headache, decreased concentration, significantly impaired memory, and impaired speech and balance problems. Head injury of this degree is likely to affect reasoning, judgment and decision making, rendering the applicant vulnerable to making poor decisions and being easily manipulated by others. Such appears to be the case with regards to the applicant's offense of belonging to an extremist organization. As such, there is a nexus between his traumatic brain injury and the offenses leading to his discharge from the Army. In a personal appearance hearing conducted at Arlington, VA on 6 February 2017, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of service, to include his combat service, and his counsel’s testimony, circumstances surrounding his discharge (i.e. in-service diagnosis of PTSD, OBH, and TBI and the capricious and arbitrary actions by the chain of command regarding nondeployable medical status), and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to general (under honorable conditions). The Board determined the reason for discharge was proper and equitable and voted not to change it. (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: 28 December 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: DD Form 458 (Charge Sheet), dated 19 May 2011, reflects the applicant was charged with violation of the UCMJ, Articles 81, 92, 116, and 134. (2) Basis for Separation: The applicant was informed of the following reasons: Charge I: Violation of the UCMJ, Article 81, Conspiracy Charge II: Violation of the UCMJ, Article 92, Failure to obey order or regulation Charge III: Violation of the UCMJ, Article 116, Riot or breach of peace Charge IV: Violation of the UCMJ, Article 134, General, knowingly become a member of, or affiliate with, a group which encouraged the overthrow or destruction of the Government of the United States by force or violence, in violation of 18 U.S. Code Section 2385. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 29 November 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 December 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 September 2007 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 4 years, 3 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (21 February 2009 to 12 February 2010) f. Awards and Decorations: ARCOM, MUC GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DD Form 458 (Charge Sheet), dated 19 May 2011, described at the preceding paragraph 3c(2). i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: WBAMC Medical reflect the applicant was diagnosed with depression with anxiety on 7 January 2009 and chronic PTSD on 17 March 2010. 5. APPLICANT-PROVIDED EVIDENCE: Online application; WBAMC Medical Records (extracts) pages 167-169, 323-325, and 333-334; Pawnee Mental Health Services Medication Evaluation; and Electronic Medical Record Document pages 1-4. 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 that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members’ discharges. “Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre-existing conditions which are determined not to have been incurred or aggravated while in military service.” “Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution 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 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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date. The applicant contends that the government never moved forward with the charges of conspiracy to commit an offense (Article 81) and failure to obey an order (Article 92) in 2010, instead he was discharged. However, 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 applicant contends that he deserves an upgrade because his PTSD and TBI were direct results of his military service and detrimentally affected his life following his deployment. The applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. Further, there are many Soldiers with the same condition that completed their service successfully. The applicant also contends that the discharge left no opportunity for him to defend the charges against himself or for a full investigation into his specific involvement; and, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. The applicant contends his discharge should be upgraded because the VA made its determination that his service was dishonorable based on the characterization of service he was given when he was discharged. However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant states he was never evaluated for competency to stand trial nor was there an evaluation to determine his mental responsibility. 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 he was unjustly discriminated. In fact, on 20 November 2011, the applicant voluntarily requested discharge in lieu of trial by court-martial, indicating that he made the request of his own free will and has not been subjected to any coercion whatsoever by any person. Furthermore, the applicant indicated that he was advised of the implications that were attached to his request. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. The applicant contends that he had good service, which included a deployment to Iraq. 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 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents or contentions. b. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 6 February 2017, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of service, to include his combat service, and his counsel’s testimony, circumstances surrounding his discharge (i.e. in-service diagnosis of PTSD, OBH, and TBI and the capricious and arbitrary actions by the chain of command regarding nondeployable medical status), and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to general (under honorable conditions). The Board determined the reason for discharge was proper and equitable and voted not to change it. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General (Under Honorable Conditions) c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board 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 AR20150017629 6