1. Applicant’s Name: a. Application Date: 20 January 2016 b. Date Received: 1 February 2016 c. Counsel: Yes [Redacted] 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions to general, under honorable conditions or honorable. The applicant seeks relief contending, in effect, he is a decorated veteran of Operation Iraqi Freedom and was awarded the Purple Heart. He has stepped into the role of a leader in his community, despite his painful struggles with PTSD, his incarceration and his other than honorable characterization of service. The applicant, a former combat and expert infantryman and noncommissioned officer instructor, was separated from the Army as a result of a civilian conviction. He will complete an 11-year sentence of incarceration in January 2017. His request for an upgrade is based on his honorable service and his service-connected PTSD, as mandated by the PTSD upgrade memo. The applicant does not deny that he committed a serious offense against another person, but his years of positive influence on others before and since his offense are equally undeniable. The applicant will emerge from his incarceration next year at a crossroads. He will have spent more than a decade paying with his freedom for his offenses, yet also benefitting and growing from the opportunity to heal himself and others. He will face enormous difficulty reentering civilian society, both as a combat veteran and a convicted felon. A discharge upgrade will equip the applicant to meet those challenges head-on, relying on his military experiences and abilities as assets and tools to help him overcome the obstacles that he will encounter. If the applicant’s discharge remains the same, what should be his greatest sources of strengths will instead become another barrier that he must overcome. The Board’s acknowledgement of the influence of the applicant’s combat service and resultant PTSD on his actions will set the conditions for the applicant to grow from the experience, continue treatment, and contribute to his community. The applicant desires to use the educational benefits to complete his degree. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. The applicant was separated for domestic violence with a deadly weapon and rape in the second degree. The applicant has a diagnosis of service connected PTSD from the VA. Although PTSD can be associated with domestic violence, the description of the assault and sexual violence in this case was not characteristic of PTSD. The Active Duty electronic medical records were reviewed. In a records review conducted at Arlington, VA on 26 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct, (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Honorable Conditions b. Date of Discharge: 7 December 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2007 (2) Basis for Separation: The applicant committed an assault in the second degree, domestic violence while armed with a deadly weapon and rape in the second degree, domestic violence, as titled under the Revised Code of Washington (26 August 2006 and 27 August 2006). (3) Recommended Characterization: Other Than Honorable Conditions (4) Legal Consultation Date: 19 August 2007 (5) Administrative Separation Board: Conditionally Waived, 19 August 2007, contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions. On 21 September 2007, the separation approving authority disapproved the applicant’s conditional waiver request. On 15 August 2015, the Administrative Separation Board convened. The applicant was absent due to civilian confinement; however, he heard real time board proceedings via conference phone. The applicant’s counsel was present during the board proceedings. (6) Separation Decision Date/Characterization: 30 November 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 19 May 2006 / 5 years b. Age at Enlistment/Education/GT Score: 20 / Associate’s Degree / 111 c. Highest Grade Achieved/MOS/Total Service: E-6 / 11B18, Infantryman / 6 years, 1 month, 1 day d. Prior Service/Characterizations: ARNG, 5 August 1999 - 2 November 1999 / NA IADT, 3 November 1999 - 10 March 2000 / HD ARNG, 11 March 2000 - 15 August 2000 / HD RA, 16 August 2000 - 11 December 2002 / HD RA, 12 December 2002 - 18 May 2006 / HD e. Overseas Service/Combat Service: SWA / Iraq (7 November 2003 - 22 October 2004) f. Awards and Decorations: PH, ARCOM, AAM-2, AGCM-2, NDSM, GWTEM, GWTSM, OSR, CIB g. Performance Ratings: 1 December 2005 - 31 October 2006, Fully Capable h. Disciplinary Action(s)/Evidentiary Record: DA Forms 4187 (Personnel Action), dated 17 September 2006, reflects the applicant’s duty status changed from “Present for Duty (PDY)” to “Confined by Civilian Authorities (CCA),” effective 17 September 2006. DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), reflect an Administrative Separation Board convened on 15 November 2007, to determine whether the applicant should be separated from the United States Army, under the provisions of AR 635-200, Chapter 14-12c, Commission of Serious Offense. Administrative Separation Board Findings Worksheet, prepared by the board recorder and signed by the board members, reflect the applicant was found to have committed a serious offense within the meaning of AR 635-200, Chapter 14, Section II, para 14-12c. In view of the findings, and after careful consideration of the evidence before them, the board further found that the applicant should not be retaining in the military service and that he should be discharged from the military service with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. State of Washington, Court documents, dated 19 September 2006, reflect the applicant was charged as follows: Count I: Assault in the second degree / domestic violence - Class B Felony, for assaulting his girlfriend and thereby recklessly inflicted substantial bodily harm, between 26 August 2006 and 27 August 2006. Count II: Assault in the second degree / domestic violence while armed with a deadly weapon - Class B Felony, for assault his girlfriend with a deadly weapon (combat knife), between 26 August 2006 and 27 August 2006. Count III: Rape in the second degree / domestic violence - Class A Felony, for engaging in sexual intercourse by forcible compulsion with his girlfriend, between 26 August 2006 and 27 August 2006. The applicant was found Guilty on Counts II and III and Not Guilty on count I. The applicant was sentenced to 137 months confinement. i. Lost Time: 446 days (Confinement, 17 September 2006 - 7 December 2007) j. Diagnosed PTSD/TBI/Behavioral Health: Veterans Affairs (VA) Disability Rating Decision, dated 26 April 2013, reflects he was rated 50 percent service-connected disability for PTSD. Department of Corrections Primary Encounter Report, dated 10 February 2011, reflects the applicant was diagnosed with (Axis I) PTSD and Polysubstance Dependence- Controlled Behavior. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 20 January 2016, with legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant was instrumental in creating a Veterans Pod that provided dedicated housing, services, and camaraderie for incarcerated veterans. 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. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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, through counsel, requests an upgrade of his under other than honorable conditions to general, under honorable conditions or honorable. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms that 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. 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. The applicant contends the VA has granted him a service connected disability for PTSD. The applicant provided a copy of his VA disability decision rating and medical treatment records which support his contention. 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. The service record was void of a mental status evaluation and contains no evidence of PTSD diagnosis at the time of the separation proceedings. The applicant contends that he had good service, which included a combat tour. 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 is to be commended for his accomplishments. The applicant contends that since leaving the Army, he has used his experience to help create a veteran’s POD, which provides a support network and sense of purpose for incarcerated veterans. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. The Army Discharge Review Board is authorized to consider post-service factors in the 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. The third party statements provided with the application speak highly of the applicant’s performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements 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 applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, 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 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 26 August 2016, 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 SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable 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 OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160003375 1