1. Applicant's Name: a. Application Date: 24 February 2016 b. Date Received: 4 March 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 pertinent part and in effect, his discharge was due to drawing his BAH while no longer being married. He elected to accept his current discharge while under extreme duress and because he felt he had no support. (The applicant provided an extensive detail surrounding the circumstances and events that led to his discharge.) Per the Board's Medical Officer, based on the information available for review at the time, AHLTA and VA electronic medical records reviewed. AHLTA indicates multiple Behavioral Health contacts for symptoms of depression and suicidal ideation. BH notes document that applicant was under severe stress from brother's terminal illness, his wife's infidelity/estrangement as well as stress from his section sergeant's harassment of him for complaining about another Soldier huffing canned air. Some symptoms of PTSD reported but applicant did not meet criteria for PTSD and consistently screened below 50 on PCL-M (PTSD screen-score of 50 and above indicates further evaluation is needed). AHLTA diagnosis: Adjustment Disorder with depressed mood, Depressive Disorder NOS, Nightmare Disorder, Insomnia. VA Compensation and Pension (C&P) exam for PTSD did not diagnose PTSD but noted presence of some PTSD symptoms. Overall, his Behavioral Health history is most compelling for his depressive condition. Given that depression can lead to inertia and indecisiveness, I feel it is partially mitigating in this case with regards to his offense of not cancelling his BAH in a timely fashion. In a personal appearance hearing conducted at San Antonio, TX on 20 March 2017, and by a 5-0 vote, the Board determined the discharge was improper. The evidence indicates the applicant was subjected to arbitrary and capricious actions by his command as indicated by the initiation of the Court-Martial proceedings 14 months after the fact he committed BAH fraud, in addition to the appearance of whistleblower reprisal after the applicant testified against an NCO. During his personal testimony, the applicant stated that he claimed BAH with dependents for four months after his divorce and he did not want to move back in the barracks because he was being threatened by other Soldiers. The applicant paid back the difference. 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 restoration of grade to E-4/SPC. (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: 12 March 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 August 2009 / 4 years, 22 weeks b. Age at Enlistment / Education / GT Score: 33 / Baccalaureate Degree / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 13R10, Field Artillery Firefinder Radar Operator / 3 years, 6 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (4 July 2010 to 19 June 2011) f. Awards and Decorations: NDSM, ICM-CS, ASR, OSR, MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders, dated 1 March 2013 There is no negative counseling statement or any record of a UCMJ action; however, the applicant was discharged at the grade of E-1, resulting from the Chapter 10 UOTH discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, self-authored statement, and DD Form 214. As additional evidence, three character/supporting statements. 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 available record of service, and the issues and documents submitted with his application were carefully reviewed. The applicant's service record is void of the complete facts and circumstances of the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 10, AR 635-200, for discharge "In Lieu of Trial by Court-Martial." Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's contentions about accepting his current discharge while under extreme duress and because he felt he had no support were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs. This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced sufficient evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further sufficient evidence in support of this request for an upgrade of the discharge. The third party statements provided with the application speak highly of the applicant's performance and character. However, 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. Further, the Board can find that the statements on behalf of the applicant were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. Based on the available record, 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 testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents. b. The applicant presented no additional contentions. c. Witness(es) / Observer(s): Candace Mallory (O) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at San Antonio, TX on 20 March 2017, and by a 5-0 vote, the Board determined the discharge was improper. The evidence indicates the applicant was subjected to arbitrary and capricious actions by his command as indicated by the initiation of the Court-Martial proceedings 14 months after the fact he committed BAH fraud in addition to the appearance of whistleblower reprisal after the applicant testified against an NCO. During his personal testimony, the applicant stated that he claimed BAH with dependents for four months after his divorce and he did not want to move back in the barracks because he was being threatened by other Soldiers. The applicant paid back the difference. 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 restoration of grade to E-4/SPC. 11. 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 to RE code to 1 f. Restore Grade to: E-4/SPC 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 AR20160005403 1