1. Applicant's Name: a. Application Date: 2 October 2017 b. Date Received: 6 March 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, his request is based on the Secretary of Defense Memorandum dated 3 September 2014, with regard to PTSD being a mitigating factor in the action that resulted in an other than honorable discharge. The case that led to the other than honorable discharge was dismissed by the State of Texas on 13 March 2014. The judge's intention was for his case to wait for the establishment of the Veterans Court in El Paso, Texas, for cases that would focus on rehabilitation from combat related PTSD. However, he was not allowed to stay in the Army until his court case was finalized. He served in an intense combat environment as a light infantry officer during the surge in Iraq. He did not have a good support structure and his PTSD was untreated for long periods between 2008 and 2012. He believes that his PTSD was at a level that could have resulted in a Medical Review Board in 2010, when the incident occurred. His service was deemed "honorable for benefits" by the VA, and he has a 70 percent disability rating for PTSD. Additionally, he was rated 10 percent for residual TBI. He has not had any more instances involving law enforcement since the one that led to his discharge. Per the Board's Medical Officer, a review of the military electronic medical records revealed diagnoses of an Adjustment Disorder, Depression, Marital Problem, Partner Relational Problem, and PTSD. Medical records revealed two traumatic brain injuries, in January and February 2007, and involvement in behavioral health services to include Family Advocacy Program since June 2008 following an alleged domestic dispute. In summary, although SM had behavioral health conditions while in service, his diagnoses are not reasonably related to the misconduct of assaulting his wife, interfering with emergency phone calls or making a false statement. Lastly, despite diagnoses of TBI and PTSD, SM received several ratings of Best Qualified on OERs following his deployment, which indicates his behavioral health conditions were not functionally limiting. Based on the information available for review at the time, the applicant's behavioral health conditions did not mitigate the misconduct. In a records review conducted at Arlington, VA on 25 August 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2b and 4-24a (1) / BNC / NA / Under Other Than Honorable Conditions b. Date of Discharge: 21 June 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 April 2011 (2) Basis for Separation: The applicant was informed of the following reasons: A series of substantiated derogatory activity resulting in him receive a GOMOR, dated 14 March 2011 that was filed in his Official Military Personnel File (OMPF). He was reprimanded for assaulting his wife, interfering with her emergency calls to 911, and for conduct unbecoming an officer, in violation of Articles 128, 133, and 134. His misconduct, moral and professional dereliction of duty in that he lied in his rebuttal submission to Major General W about events that formed the basis of the AR 15-6 investigation. He made a statement that he simply disconnected a call when he found his cell phone under the bed connected to an unknown party. However, the 911 recording suggests that the call was disconnected abruptly as his wife was screaming her address into the phone. His relief from command for cause, dated 18 April 2011, UP AR 600-20, paragraph 2 - 17a. He was relieved for cause based on his poor judgment and misconduct, and the loss of confidence in his ability to command. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 2 November 2011 (5) AD Hoc Board: 17 May 2012, the AD Hoc review board considered the applicant's request for resignation in lieu of elimination in accordance with AR 600-8-24, Chapter 4. (6) Separation Decision Date / Characterization: 30 May 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Appointment: 29 May 2004 / Indefinite b. Age at Appointment / Education / GT Score: 22 / Bachelor's Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 90A, 5P Logistics / 8 years, 1 month, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait / Iraq (23 March -22 June 2006; 9 August 2006 -8 November 2007) f. Awards and Decorations: ICM-2CS, MSM, ARCOM-3, MUC, VUA, NDSM, GWOTEM, GWOTSM, ASR, OSR, CIB g. Performance Ratings: 24 November 2004 - 24 November 2005, Fully Qualified 25 November 2005 - 16 December 2008, Best Qualified 17 December 2008 - 1 December 2009, Best Qualified 2 December 2009 - 18 April 2001, Do Not Promote, RFC 19 April 2011 - 14 June 2012, Best Qualified h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 29 June 2005, reflects the applicant was apprehended for: Driving while intoxicated NYVTL (Civil) (Off Post). General Officer Memorandum of Reprimand (GOMOR), dated 14 July 2005, for driving a vehicle while intoxicated on 27 June 2005, with a blood alcohol content of .11 percent. El Paso County Detention facility Arrest Supplement, dated 24 January 2011, reflects the applicant was arrested for: Assault causes bodily injury / family - Misdemeanor Obstruct retaliation - Felony Interfere with emergency call - Misdemeanor Findings, Report of AR 15-6 Investigation, dated 31 January 2011, reflects: There was insufficient evidence to support that the applicant assaulted his wife. The applicant did destroy two phones in an effort to inhibit his wife from making emergency phone calls. The investigating officer recommended that he applicant be relieved of command, for obstructing his wife from making two emergency phone calls; and, for fleeing the scene of the incident in order to avoid questioning by the police. Further, he recommended that the applicant receive a General Officer Memorandum of Reprimand (GOMOR) for his conduct. General Officer Memorandum of Reprimand (GOMOR), dated 14 March 2011, for assaulting his wife and interfering with her emergency calls and conduct unbecoming an officer. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Medical Treatment records, dated 28 July 2009, reflects the applicant received treated for PTSD. The applicant provided a copy of his VA disability rating decision, dated 21 December 2015, which reflects the applicant was rated 70 percent disability for PTSD (also claimed to include any sleep disorder); and, 10 percent for residuals, traumatic brain injury. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service may be granted. Army Regulation 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 "BNC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 4-2b and 4-24a (1), unacceptable conduct. 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 and a narrative reason change. The applicant's available 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant diminished the quality of his service below that meriting an honorable discharge. The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 4, AR 600-8-24 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "BNC." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. The applicant believes his PTSD was at a level that he should have been medically discharged. Additionally, he should be given liberal consideration based on his PTSD. However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Further, the applicant requested to resign in lieu of elimination. The applicant contends that the civil court case that led to his discharge was dismissed. However, the evidence provided by the applicant, reflects that the charges were dismissed only after he completed one year of community supervision. Further, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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 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 25 August 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 AR20170003204 1