1. Applicant's Name: a. Application Date: 17 December 2015 b. Date Received: 21 December 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change of his narrative reason for separation. The applicant seeks relief contending, in effect, that he was unfairly discharged and that his discharge should be upgraded based on the fact that he was a good Soldier. The applicant contends that he has reviewed his case with a number of individuals, to include the others that were charged at the time, and should it be noted that the other cases were dropped and that the other Soldier is still on active duty as an NCO. He is extremely concerned that his case had so many different issues with separate outcomes and the issues were all pursued in various ways. Regardless of any single issue, the applicant alleges that it was apparent that he was pursued by an overzealous investigator, an individual that continuously did not want to hear from him, but had already made up his mind prior to meeting with him. Further alleging that the investigator skewed his interview information and would not allow the applicant to correct him. He changed the outcome of the greater majority of his interview. Equally, the applicant believes he was represented by an attorney, provided to him, that was more interested in getting an "end product" for his case rather than obtaining a fair and balanced verdict/outcome. The applicant contends that he was young and felt very intimidated by both the investigator and the attorney. Until this extremely unfortunate issue, his record as a Soldier was very good, he performed all assigned duties, was promoted and received accommodations and medals for his services. He now asks that his discharge be upgraded to remove this blemish off his military service. Per the Board's Medical Officer, based on the information available for review at the time, the applicant sustained a concussion while deployed in 2008 when the bulldozer he was driving hit a 155 round. The explosion brain injured the applicant. On entry into the Army, he had a GT score of 101. On 26 April 2010, a neuropsychologist report in AHLTA showed his IQ fallen into the borderline range of intellectual functioning. Some of his difficulties are reflected in his profile. He also had PTSD, which further complicated his difficulties. He currently has a 70% service-connected disability rating from the VA. His diagnoses include Cognitive Disorder, Anxiety NOS, PTSD, Post-concussion Syndrome, and memory lapses. In a records review conducted at Arlington, VA on 26 April 2017, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (i.e. the applicant earned BSM and CAB on 14 month deployment. 1SG statement that applicant volunteered for dangerous missions; recovered six IEDs - one detonated (155 shell against his dozer blade); in-service TBI and PTSD diagnosis; TBI had massive IQ impact, this should have been medically dispositioned; and the acquisition of chairs left out for DRMO was not unreasonable by the applicant) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails a change to the reentry eligibility (RE) code to 1. (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-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 August 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: DD Form 458 (Charge Sheet), dated 12 March 2010, reflects the applicant was charged with violations of the UCMJ, Articles 81 and 121. (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 121, Larceny and Wrongful Appropriation (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 April 2010 (5) Separation Decision Date/Characterization: 18 June 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 June 2007 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21E10, Construction Equipment Operator / 3 years, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (28 April 2008 to 30 June 2009) f. Awards and Decorations: BSM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: As noted in 3c(2) above i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored letter; document withdrawing and dismissing his co-offenders charges; letters of recommendation; narrative for award of the BSM; and early promotion DA Form 4187. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 "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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change of his narrative reason for discharge. 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 two offenses 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 applicant contends his discharge should be upgraded because he was a good Soldier; the applicant's contention was noted, however, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of in lieu of trial by court-martial. It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. The applicant contends that he was unfairly discharged and that he was represented by an attorney, provided to him, that was more interested in getting an "end product" for his case rather than obtaining a fair and balanced verdict/outcome. 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 unfairly discharge. The applicant contends he has reviewed his case with a number of individuals, to include the others that were charged at the time, and that it should be noted that the other cases were dropped and the other Soldier is still on Active Duty as an NCO. The applicant contends that the other Soldier was not discharged was noted; however, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 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. It should be noted the appropriate SPD code and narrative reason for discharge to assign enlisted Soldiers who are discharged in lieu of trial by court-martial is "KFS" and the RE code is 4. The regulation further stipulates that no deviation is authorized. The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 3. The discharge packet confirms the separation authority approved the discharge by reason of Chapter 10, in lieu of trial by court- martial. Soldiers processed for discharge in lieu of trial by court-martial will be assigned an SPD Code of KFS and an RE Code of 4. In view of the foregoing and notwithstanding the propriety of the discharge, the applicant's DD Form block 27 should be changed to reflect an reentry code of 4, as approved by the separation authority. 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 April 2017, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (i.e. the applicant earned BSM and CAB on 14 month deployment. 1SG statement that applicant volunteered for dangerous missions; recovered six IEDs - one detonated (155 shell against his dozer blade); in-service TBI and PTSD diagnosis; TBI had massive IQ impact, this should have been medically dispositioned; and the acquisition of chairs left out for DRMO was not unreasonable by the applicant) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails a change to the reentry eligibility (RE) code to 1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, Chapter 5-3 e. Change SPD/RE Code to: Change SPD to JFF/ Change RE code to 1 f. Restore Grade to: 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 AR20160000690 5