1. Applicant's Name: a. Application Date: 12 February 2016 b. Date Received: 16 February 2016 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. The applicant seeks relief contending, in effect, he served honorably during his whole Army career. He was a proud, highly decorated leader, who attained the rank of Sergeant in one year, loved the Army, and never had any disciplinary issues until he was falsely accused by CID for selling military equipment. It was never proven that he committed the crime. The applicant contends that CID harassed him at his home for the false confession, so he went AWOL. The sworn statement that described the criminal offense does not describe him. Per the Board's Medical Officer, based on the information available for review at the time, although he does have diagnoses of PTSD and mTBI, and other behavioral health conditions in his available records, the nature of his misconduct was of a severity, deliberateness, and specific intention, and in the case of his alleged Desertion, duration mitigation by reason of PTSD, mTBI, or other behavioral health condition is inappropriate. Selling government property was supported by a CID investigation. The records also failed to show that the applicant did not understand the nature of his misconduct or know that it was wrong. In a records review conducted at Arlington, VA on 26 April 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: 17 April 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: DD Form 458 (Charge Sheet), dated 10 March 2015, reflects the applicant was charged with violations of the UCMJ, Articles 85 and 108. (2) Basis for Separation: The applicant was informed of the following reasons: Charge I: Violation of the UCMJ, Article 85, Desertion (11 December 2012 until 26 August 2014) Charge II: Violation of the UCMJ, Article 108, selling military property without authority Specification 1: without proper authority, sell to G.A.L., four M-68 weapon sights, of a value greater than $500.00, military property of the United States Specification 2: without proper authority, sell to F.V.J., four M-68 weapon sights, of a value greater than $500.00, military property of the United States (3) Legal Consultation Date: 18 March 2015 (4) Recommended Characterization: General (Under Honorable Conditions) was recommended by the unit commander; however, both the battalion and brigade commanders recommended a characterization of service of Under Other Than Honorable Conditions. (5) Separation Decision Date / Characterization: 31 March 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 August 2008 / 6 years (Enlistment was extended for the convenience of the government.) b. Age at Enlistment / Education / GT Score: 27 / GED / 100 c. Highest Grade Achieved / MOS / Total Service: E-5 / 88M20, Motor Transport Operator / 6 years, 9 months, 29 days d. Prior Service / Characterizations: RA, 4 October 2006 to 20 August 2008 / HD e. Overseas Service / Combat Service: SWA / Kuwait/Iraq (24 July 2007 to 19 October 2008) f. Awards and Decorations: ARCOM, AAM-2, AGCM, NDSM, ICM-CS, GWOTSM, NCOPDR, ASR, OSR, CAB g. Performance Ratings: 1 December 2008 thru 12 June 2009, Fully Capable 13 June 2009 thru 12 July 2010, Fully Capable 13 June 2010 thru 12 June 2011, Fully Capable 1 August 2011 thru 9 March 2012, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Service School Academic Evaluation Report, dated 19 February 2009, reflects the applicant exceeded the course standards of the Warrior leader Course, and was a Commandant's List Graduate. Five DA Forms 4187 reflect changes to the applicant's duty status as follows: from "Present for Duty (PDY)" to "AWOL," effective 11 December 2012 from "AWOL" to "Dropped From Rolls (DFR)," effective 10 January 2013 from "DFR" to "Confined Civilian Authorities (CCA)," effective 23 August 2014 from "CCA" to "RMC (Return to Military Control)," effective 26 August 2014 from "RMC" to "PDY," effective 27 August 2014 MP Report, dated 12 December 2012, reflects the applicant was the subject of an investigation for reported AWOL. MP Report, dated 10 January 2013, reflects the applicant was the subject of an investigation for desertion. CID Report, dated 28 March 2013, reflects the applicant was the subject of an investigation for larceny of government property. MP Report, dated 2 April 2013, reflects the applicant was the subject of an investigation for larceny of government property. i. Lost Time / Mode of Return: 626 days 623 days (AWOL, 11 December 2012 to 25 August 2014) / unknown mode of return 3 days (Civilian Confinement, 23 to 26 August 2014) / unknown j. Diagnosed PTSD / TBI / Behavioral Health: Health Record, dated 17 November 2011, reflects the applicant's diagnoses of PTSD, mTBI, and other behavioral health issues. Memorandum, dated 18 March 2015, Subject: Request for Discharge in Lieu of Trial by Courts-Martial, [the applicant, rendered by a trial defense counsel, relates to the applicant behavioral health issues. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Form 21-4138; self-authored statement; Sworn Statement; two handwritten notes; health record; pages 3 and 4 of CID Agent's Investigation Report; and page 1 of 2 pages, CID Agent's Investigation Report. 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 that 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 his under other than honorable conditions discharge to honorable. The applicant's record of service, and 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. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. 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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service The applicant contends the discharge was unjust because he was falsely accused and harassed by CID. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. Regarding the applicant's documentary evidence of behavioral health issues and PTSD with mTBI diagnoses, a careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service- connected post-traumatic stress disorder symptoms existed. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. 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 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: 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 AR20160004065 1