1. Applicant’s Name: a. Application Date: 18 May 2016 b. Date Received: 26 May 2016 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant, in effect, defers to his previously submitted legal brief. He is requesting an upgrade of his discharge based upon both prejudicial error and equitable considerations. The applicant states, the procedures involving his discharge from the Army resulted in him not being afforded the basic rights to be represented by counsel. The applicant further states, he was not afforded the basic rights to an administrative separation board hearing as provided by Army Regulation and other legal authority. The applicant contends, the circumstances and procedures surrounding his discharge board hearing was coercive and generated confusion, bad advice, and was primarily a rush to judgment created by the command. To assure sufficient time for processing a discharge in view of his impeding expirations of term of service (ETS). The applicant further contends, his command, the Board President, Board Legal Advisor, and Government Legal Counsel did not adhere to Army Regulation to provide him with a reasonable time to obtain legal counsel. The applicant states, in effect, he was improperly denied counsel, scheduled for a board hearing at a time when the board knew he could not have his retained counsel present to represent him, and the undue influence place on him, ultimately cause him to waive the board hearing. The applicant further states, his waiver was a direct result of the inappropriate pressure by members of the Board and a direct result of the unreasonable denial of counsel and amounted to coercion and thus was an involuntary waiver. The applicant contends, he was diagnosed with Post Traumatic Stress Disorder (PTSD) at Fort Sill, by Dr. D. The applicant contends, as a matter of equity he deserves to have his discharge upgraded to an honorable or a general, under honorable conditions. In a prior records review conducted at Arlington, VA on 18 March 2016, the Board denied the request upon finding the separation was both proper and equitable. Per the Medical Board's Medical Officer, based on the information available for review at the time, the applicant has a behavioral health condition which partially mitigates some of the offenses which led to his discharge from the military. The applicant has been diagnosed with combat related PTSD by both a civilian psychologist and psychiatrist. He is currently receiving treatment for this PTSD. PTSD is associated with avoidant behaviors. As such, there is likely a nexus between the PTSD and the offenses of failure to report and missing movement. PTSD is also associated with the use of substances to self-medicate negative mood states. As such, PTSD would be considered mitigating for the offense of possession of marijuana and steroids. It would not be considered mitigating for the offense of possession with intent to distribute GBH and MDMA. It would also not be considered mitigating for the offense of malingering. Both the military and the VA electronic medical records were reviewed. In a personal appearance hearing conducted at Arlington, VA on 7 November 2016, and by a 5-0 vote, the Board determined that the characterization of service was too harsh and inequitable based on the applicant’s length of service, to include his combat service, and circumstances surrounding his discharge (i.e. diagnosis of service-connected PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade of 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: Misconduct / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 16 July 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 March 2004 (Provided by the applicant, exhibit B) (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was informed of the following reasons: The applicant received numerous counseling statements for failing to report, missing movement, and malingering. These are violations of Article 86 and Article 115, UCMJ. He has also received formal punishment under UCMJ for his actions. Furthermore, he was pending charges for possession of marijuana, steroids, and for possession with intent to distribute GHB and MDMA by the District Attorney of Comanche County. Possession of controlled substances is also a serious offense under the UCMJ. His conduct is not conducive to the good order and discipline of the Army. (Provided by the applicant, exhibit E) (3) Recommended Characterization: Under Other Than Honorable Conditions (Provided by the applicant, exhibit E) (4) Legal Consultation Date: 4 June 2004 (Provided by the applicant, exhibit C) (5) Administrative Separation Board: 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 a general discharge on 4 June 2004. (Provided by the applicant, exhibit C) The applicant’s conditional waiver, dated 4 June 2004, was denied and his case was referred to an administrative separation board on 10 June 2004. The applicant voluntarily waived consideration of his case by an administrative separation board on 9 July 2004 (approved 14 July 2004). (Provided by the applicant, exhibit M) (6) Separation Decision Date / Characterization: 14 July 2004 / Under Other Than Honorable Conditions (Provided by the applicant, exhibit M) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 July 2001 / 3 years b. Age at Enlistment / Education / GT Score: 18 / GED / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13P10, Multiple Launch Rocket System (MLRS) Automated Tactical Data Systems Specialist / 2 years, 11 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (23 March 2003 to 3 December 2003) f. Awards and Decorations: ARCOM, NDSM, ASR, GWOTSM, GWOTEM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum, undated, Subject: Separation, Under AR 635-200, Chapter 14, made reference to disciplinary action, including nonjudicial punishment (DA Form 2627) and record of trial by court-martial (DD rom 2329) located at enclosure three and five; however none was included in the separation packet. (Provided by the applicant, exhibit A) i. Lost Time / Mode of Return: 6 days (Confinement, 7 May 2004 to 12 May 2004) / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and a memorandum, dated 23 May 2016. 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. 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 requests an upgrade of his under other than honorable conditions discharge to 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, such that he should have been retained on Active Duty. The applicant seeks relief, contending, he is requesting an upgrade of his discharge based upon both prejudicial error and equitable considerations. 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. 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 states, the procedures involving his discharge from the Army resulted in him not being afforded the basic rights to be represented by counsel. The applicant further contends, his command, the Board President, Board Legal Advisor, and Government Legal Counsel did not adhere to Army Regulation to provide him with a reasonable time to obtain legal counsel to represent him. However, the record reflects that on 4 June 2004, the applicant request consulting counsel and representation by military counsel. The senior defense counsel advised and assist the applicant in preparing his conditional waiver. The applicant signature on this document attest to the facts that he have been afforded the opportunity to consult with consulting counsel and to consider whether or not to submit a conditional waiver. The applicant contends, the circumstances and procedures surrounding his discharge board hearing was coercive and generated confusion, misadvise to the applicant, and was primarily a rush to judgment created by the command. To assure sufficient time for processing a discharge in view of his impeding expirations of term of service (ETS). 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 further states, he was not afforded the basic rights to an administrative separation board hearing as provided by Army Regulation and other legal authority. The applicant states, he was improperly denied counsel, scheduled for a board hearing at a time when the board knew he could not have his retained counsel present to represent him, and the undue influence place on him, ultimately cause him to waive the board hearing. The applicant further states, his waiver was a direct result of the inappropriate pressure by members of the Board and a direct result of the unreasonable denial of counsel and amounted to coercion and thus was an involuntary waiver. However, the record shows that on 16 June 2004, the applicant was notified to appear before an administrative separation board that was scheduled for 1300 on 7 July 2004. The applicant signed page two of the memorandum acknowledging he received the notification of the date and time of the separation board hearing. Furthermore, the applicant was given a one day delay to attend a preliminary hearing downtown on 7 July 2004. The applicant allegedly hired a civilian counsel Mr. D. C. and then approximately at 1400 he fired CPT J.M., his military counsel on 7 July 2004. The applicant contends, he was diagnosed with PTSD at Fort Sill, by Dr. D. However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends, as a matter of equity he deserves to have his discharge upgraded to an honorable or a general, under honorable conditions. 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. However, this service was determined not to be sufficiently mitigating factors to warrant a fully honorable discharge at the time of his separation. 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 document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents or contentions. b. Witness: Yes (Father) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 7 November 2016, and by a 5-0 vote, the Board determined that the characterization of service was too harsh and inequitable based on the applicant’s length of service, to include his combat service, and circumstances surrounding his discharge (i.e. diagnosis of service-connected PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade of 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 AR20160010391 6