1. Applicant's Name: a. Application Date: 27 May 2016 b. Date Received: 10 June 2016 c. Counsel: 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 and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, his discharge was inequitable and should be characterized as honorable because the majority of his service was honorable. His discharge was inequitable and should be characterized as honorable, because the offense he was charged with and discharged for was relatively minor and did not warrant discharge even if convicted. His discharge was inequitable and should be characterized as honorable because it failed to take into account his mental status at the time of the alleged offense. His discharge was inequitable and should be characterized as honorable, because the charges and specifications against him infringed on his right to freedom of speech, guaranteed by the First Amendment to the Constitution he was sworn to uphold. Per the Board's Medical Officer, based on the information available for review at the time, AHTLA diagnoses include Adjustment Disorder with depressed Mood, Adjustment Disorder with Disturbance of Emotions and Conduct, Anxiety Disorder NOS, Depression, and Major Depressive Disorder. JLV contained no VA service-connected disability and no VA diagnoses. The applicant's material also included an assessment by a licensed psychologist that diagnosed PTSD and Major Depressive Disorder. This assessment is dated 28 March 2010. A self-report on 15 July 2006 did have him denying any psychiatric symptoms on the questionnaire at that time. In response, his Medical Exam for that date showed a profile of 111111. The applicant's Mental Status Exam on 23 February showed no impairments at that time, specifically saying he met Army Medical Retention Standards, knew right from wrong and was negative for PTSD and TBI. Despite PTSD and possible TBI as diagnoses in the records, the records do not show him as being at a level of psychiatric impairment so grave that he did not know the nature of his acts or if he did know them did not know that they were wrong. The planned, intentional nature of his threats is not something that can be attributed to his PTSD or any other mental illness. His misconduct is not mitigated. In a records review conducted at Arlington, VA on 08 September 2017, 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: 29 April 2010 c. Separation Facts: Yes (1) Date Charges Were Preferred: The applicant submitted two DD Forms 458 with his application, dated 17 December 2009 and 4 February 2010 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicate on 17 December 2009, the applicant was charged with the following offenses; wrongfully made statements to members of his battalion that he would engage in acts of violence against members of his unit, said conduct being prejudicial to the good order and discipline of the armed forces between (8 July 2009 and 8 December 2009); distributed to Soldiers in his unit original songs wrongfully threatening acts of violence against members of his unit, said conduct being prejudicial to the good order and discipline of the armed forces between (8 July 2009 and 8 December 2009); and on diverse occasions, wrongfully communicated to PFC J.Y., that he "would go on a rampage" or words to that effect, said conduct being prejudicial to the good order and discipline of the armed forces. The evidence of record contains another DD Form 458, Charge Sheet which indicates the applicant was additionally charged on 4 February 2010, with wrongfully communicating to COL T.B., a threat that he was going to shoot Soldiers in the rank of sergeant first class and above if he deployed with his unit to Iraq, or word to that effect, and under the circumstances, his conduct was to the prejudice to the good order and discipline of the armed forces or was of a nature to bring discredit upon the armed forces (16 July 2009); and wrongfully communicate to PFC A.S., a threat that he would shoot LTC G.S., if he deployed with his unit to Iraq, or words to that effect, and under the circumstances, his conduct was to the prejudice to the good order and discipline of the armed forces or was of a nature to bring discredit upon the armed forces between (1 July 2009 and 11 December 2009). (3) Recommended Characterization: NIF (4) Legal Consultation Date: 30 March 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 April 2010 / Under Other Than Honorable Conditions / the applicant was reduced to the lowest enlisted grade. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2006 / 3 years, 28 weeks / retained in service 72 days for the convenience of the government per UP 10 USC-12305. b. Age at Enlistment / Education / GT Score: 30 years / GED Certificate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91M10, Bradley Fighting Vehicle System Mechanic / 3 years, 8 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, 24 October 2007 to 5 December 2008 / Kuwait, 27 February 2010 to 20 April 2010 f. Awards and Decorations: ARCOM, AGCM, NDSM, ICM-CS, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Independent mental health evaluation, dated 28 March 2010, revealed the applicant had a suggested Axis I, diagnosis of chronic PTSD and major depressive disorder, recurrent; Axis III, rule out TBI and Axis IV, family, relationship problems, legal issues and current incarceration. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293 (four pages); letter, Gespass and Johnson, applicant's counsel; block 6 issues continuation (two pages); attorney's brief (nine pages); five support / character statements; memorandum, request for a general (under honorable conditions discharge), defense counsel (two pages); mental health evaluation (seven pages); Russian River Counselors list; charge sheets (six pages); investigating officer's report (14 pages); memorandum, advice on disposition of court-martial charges (two pages); DD Form 214; and a letter, Director, Case Management Division. 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. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 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 the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant's available 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, valor and combat duty; however, it did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant requested a change to the narrative reason for separation. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, his discharge was inequitable and should be characterized as honorable because the majority of his service was honorable. AR 635-200, paragraph 10-8(a) provides that a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. The applicant further contends, his discharge was inequitable and should be characterized as honorable, because the offense he was charged with and discharged for was relatively minor and did not warrant discharge even if convicted. AR 635-200, paragraph 10-1(a) provides that a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. The applicant also contends, his discharge was inequitable and should be characterized as honorable because it failed to take into account his mental status at the time of the alleged offense. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. The applicant also contends, his discharge was inequitable and should be characterized as honorable, because the charges and specifications against him infringed on his right to freedom of speech, guaranteed by the First Amendment to the Constitution he was sworn to uphold. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the charges and specifications against him infringed on his right to freedom of speech. The third party statements provided with the application speak highly of the applicant's performance. However, all of 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 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 08 September 2017, 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160011177 1