1. Applicant's Name: a. Application Date: 30 January 2017 b. Date Received: 6 February 2017 c. Counsel: d. Previous Records Review: 12 August 2011, AR20100029911 (Reconsideration due to new supporting evidence of PTSD diagnosis) 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 for his discharge and its corresponding codes based on propriety and equity. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, his military records attest to serving honorably prior to the incident of misconduct. He was young and immature, and made decisions resulting in a behavior that have lasting impact on his life resulting from his deployments to Iraq and Afghanistan. He is currently seeking treatment for his PTSD issues at a VA medical facility. The counsel on behalf of the applicant, states in effect, the applicant's chain of command made a material error of discretion by discharging him when he was clearly struggling with his PTSD-he was undeniably suffering from PTSD in August 2005, even with an attempted suicide, his command opted to return him to Afghanistan rather than helping to get him healthy again, and instead, attempted to persecute him for the alleged UCMJ violations. He has been evaluated with a 70 percent disability for his PTSD. Despite his struggles with his PTSD symptoms, he sought to improve himself through education and earned his Bachelor of Arts degree on 21 August 2010. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV) there was a nexus between a behavioral health or medical condition and the misconduct, which led to the applicant's separation from the Army. The Applicant's post-service diagnosis of PTSD and mental status at the time of the misconduct mitigate the misconduct. In a records review conducted at Arlington, VA on 5 September 2018, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, post-service diagnosis of PTSD, and post-service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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: 7 December 2005 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 28 September 2005, the following charges were preferred, and referred to trial by a special court-martial on 11 October 2005: Charge I: Violation of Article 86, UCMJ, for absenting himself without authority on 7 August 2005, and remained absent until 25 August 2005. Charge II: Violation of Article 92, UCMJ, for disobeying an NCO on 26 August 2005. Charge III: Violation of Article 115, UCMJ, for intentionally injuring himself, in time of war, for the purpose of avoiding his duty as an infantryman, on 26 August 2005. Charge IV: two specifications of violating Article 87, UCMJ, for missing movement on two separate occasions on 27 August 2005. (2) Legal Consultation Date: By an undated memorandum, it shows he consulted with a legal counsel (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 November 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 September 2002 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 3 years, 2 months, 2 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Italy, SWA (Iraq (NIF), Afghanistan (NIF) f. Awards and Decorations: ARCOM; AGCM; NDSM; ACM; GWOTEM; GWOTSM; ASR; OSR; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 19 days (AWOL: 7 August 2005 to 25 August 2005) / Applicant returned to his unit j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile, dated 29 August 2005, rendered by a psychiatrist, shows the applicant received a profile for "borderline personality disorder, Etoh Abuse, S/P suicide attempt by OD with Seroquel tablets, Past Dx of Panic disorder (early remission), occ. Problems," and that he met the criteria for a Chapter 5-13. The applicant's documentary evidence: VA Rating Decision, dated 1 October 2014, indicates he received a 70 percent disabling evaluation for PTSD. Health Records, dated 22 August 2005, shows the applicant's diagnosis of "Panic Disorder with Agoraphobia" and "Acute Post-Traumatic Stress Disorder." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 30 January 2017; attorney-authored brief; DA Form 2-1; two character reference/ supporting statements; two DA Forms 4187 (Personnel Action), dated 16 August 2005; counseling statement, dated 29 August 2005; memorandum, dated 10 November 2005; separation authority decision memorandum and bar from installations, dated 23 November 2005; VA Rating Decision, dated 1 October 2014; and Bachelor of Arts diploma with transcript, dated 21 August 2010. Additional Evidence: email correspondence, dated 26 June 2018, and two separate health records, dated 22 August 2005. 6. POST SERVICE ACCOMPLISHMENTS: Documentary evidence shows he received his Bachelors of Art degree, and he is employed with a recent purchase of a new home. 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 for his discharge and its corresponding codes based on propriety and equity. 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 veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant contends he was young and immature, and made decisions resulting in a behavior that have lasting impact on his life that resulted from his deployments to Iraq and Afghanistan. However, the record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant's contentions regarding his behavioral health issues resulting from his deployments, and subsequently being diagnosed with PTSD, 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 third party statements provided with the application speak highly of the applicant's performance and character, and provided recognitions of 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. 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 and to change the narrative reason for his discharge. 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. Regarding the applicant's request to change the reason for his separation and its corresponding codes, the narrative reason for his separation, however, is governed by specific directives and as approved by the separation authority. 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. 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. 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 5 September 2018, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, post-service diagnosis of PTSD, and post-service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: SECRETARIAL REVIEWING AUTHORITY (SRA): While the Board recommended upgrading your characterization of service to Honorable; as the Secretarial Reviewing Authority, the Deputy Assistant Secretary of the Army (Review boards) reviewed the findings, conclusions, and the board's recommendation under the authority of Title 10 United States Code Section 1553(b) and Department of Defense Instruction 1332.28 (Discharge Review Board (DRB) Procedures and Standards), enclosure E3.7.1.1.1. The Deputy Assistant Secretary of the Army (Review Boards) found sufficient evidence to grant additional relief and directed that your DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by issuing you a new DD Form 214 reflecting the characterization of service as Honorable; the separation authority as AR 635-200, Chapter 5-3; the narrative reason to Secretarial Authority; and the SPD code to JFF. 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 AR20170002206 6