1. Applicant's Name: a. Application Date: 11 October 2016 b. Date Received: 5 December 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason with its corresponding codes for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his discharge was inequitable because it was based on one isolated incident in his over 13 years of honorable service with no other adverse action. The fact that the incident was a direct result of his PTSD diagnosis was presented but not taken into consideration during the investigation or in the decision to discharge him. His doctor's recommendation for a medical discharge was also dismissed without consideration. During his over 13 years of service, he received numerous awards and certificates. He also contributed to writing the training manuals used for combat medics. He received numerous accolades as an instructor. The current characterization of his service is not consistent with the policies and traditions of the service. The attorney he was provided did not have his best interest-he was denied the opportunity for justice and due process as he was informed that he had no other option but to go to jail. He felt he had no choice but to accept the Chapter 10 discharge. He has been a good citizen since his discharge. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with PTSD. However, due to the nature of the misconduct, PTSD does not mitigate the misconduct. In a records review conducted at Arlington, VA on 7 February 2018, 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: 8 June 2012 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 20 April 2012, the following charges were preferred, with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge: Charge I: four specifications of violating Article 128, UCMJ, for assaulting Mrs. X on 30 April 2011, by unlawfully kicking her in the back, and on 22 January 2012 x three, pushing her in the torso to the grounds with his hands, striking her in her legs and her arms with his hands, and choking her by her neck with his hands. Charge II: Violation of Article 92, UCMJ, for failing to obey a lawful order on 22 January 2012, by wrongfully failing to register a privately owned firearm that he maintained at his on-post residence. Charge III: two specifications of violating Article 134, UCMJ, for wrongfully and knowingly prevent or interfere with Mrs. X ability to place an emergency telephone call on 22 January 2012, and while being responsible for the case of X and X, children under the age of 16, endangered the mental health, safety, and welfare of them, by assaulting Mrs. X, in the presence of said children on 22 January 2012. (2) Legal Consultation Date: 16 May 2012 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 23 May 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 July 2008 / Indefinite b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 68W38, Health Care Specialist / 13 years, 10 months, 29 days d. Prior Service / Characterizations: RA (10 July 1998 to 18 July 2001) / HD RA (19 July 2001 to 20 July 2003) / HD RA (21 July 2003 to 25 August 2004) / HD RA (26 August 2004 to 9 June 2006) / HD RA (10 June 2006 to 11 July 2008) / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (18 November 2005 to 12 November 2006), Afghanistan (7 May 2008 thru 27 March 2009) f. Awards and Decorations: ARCOM-3; AAM-5; AGCM-4; NDSM; ACM-CS; ICM-2CS; GWOTSM; KDSM; NCOPDR-2; ASR; OSR-3; NATOMDL; ASUA g. Performance Ratings: Four NCOERs rendered during period of service under current review: 1 April 2008 thru 31 March 2009, Fully Capable 1 April 2009 thru 31 March 2010, Among the Best 1 April 2010 thru 5 November 2010, Fully Capable 6 November 2010 thru 5 November 2011, Among the Best h. Disciplinary Action(s) / Evidentiary Record: MP Report, dated 22 January 2012, indicates the applicant was the subject of an investigation for simple assault, interference with an emergency call, failure to register weapon, report of information: medical emergency, and spouse abuse-civilian female victim. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Medical Record, dated 17 December 2010, 3 January 2011 thru February 2011, indicates a diagnosis of "Anxiety disorder NOS," and meeting ""all of the criteria for DSM-IV PTSD except does not drink or do drugs." Medical Records, dated 23 February 2011, 9-10 March 2011, and dates thereafter, indicate chronic issues of PTSD, anxiety disorder NOS, and the mood being irritable, and being treated for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 October 2016, with self-authored statement; DD Form 214; 10 July 1998 Enlistment Contract; five AAMs (December 1998, January 2001, April 2002, September 2004, December 2007); 12 Certificates of Achievement; four AGCMs; 2001 reenlistment documents; Promotion Orders, dated 28 April 2003; DA Form 2-1 (Personnel Date Record); three DA Forms 1059 (Service School Academic Evaluation Reports); 2003 Reenlistment documents; 10 NCOERs; 2004 and 2006 reenlistment documents; two ARCOMs; 2008 reenlistment documents; Record of Emergency Data; Election and Certificate; two ERBs; pre-separation counseling checklist; separation file; discharge orders; health records, dated 15 February 2011 thru 22 June 2012, and 2005, 2007, 2008, 2009, 2010, 2011, and 2012; radiology records May 2011 thru August 2002; lab results (April 2012 thru October 2002); operative report for 7June 2007; three character/ supporting reference letters; four pictures depicting art work; and 29 pictures depicting family. 6. POST SERVICE ACCOMPLISHMENTS: Applicant's character reference/supporting statements indicate he is currently employed as a club manager with a team of over 50 personnel. 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. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment 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 characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors 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. Caution shall be exercised 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 to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason with its corresponding codes for his discharge. The applicant's available 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. The applicant contends the incident that caused his discharge was the only one in his entire Army career with no other adverse action and a direct result of his PTSD. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant's contentions regarding his PTSD diagnosis were carefully considered. 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, and the applicant contends they were contributing factors that led to his misconduct. 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 applicant contends he should have been medically discharged according to the recommendation of his doctor; 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. The applicant contends the discharge was unjust because the attorney he was provided did not have his best interest-he was denied the opportunity for justice and due process as he was informed that he had no other option but to go to jail and he felt he had no choice but to accept the Chapter 10 discharge. 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 third party statements provided with the application speak highly of the applicant's performance and character. They all recognize his good conduct after leaving the Army; 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 applicant requests to change the reason and its corresponding codes including the reentry code for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Further, regarding the reentry code, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 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 7 February 2018, 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 AR20170001135 6