1. Applicant's Name: a. Application Date: 18 March 2017 b. Date Received: 24 March 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant through counsel seeks relief contending, in effect, the separation board was based on false accusations and initiated by the former unit which the applicant had no contact. The applicant's separation board was established by a unit that had no contact with the applicant. The applicant was barred from having military counsel at the hearing. The recorder failed to use a Special Assistant US Attorney to assist the Board in understanding the charges; the Recorder incorrectly referred to an alleged driving infraction the applicant was never convicted of, and the Board mistakenly found the applicant guilty of that infraction. The allegations by Officer P. were wholly unsubstantiated claims. The applicant's association with the motorcycle club was not a violation of the DoD directive. The applicant served with distinction for over 20 years, sacrificing everything, including mental and physical health, for the love of this country. It was within the Army's discretion to allow the applicant to execute retirement orders; instead the Army stripped all earned benefits. The applicant was discharged without retirement pay and issued a discharge that prevents the receipt of VA compensation benefits. The applicant's discharge status makes it extremely difficult to find employment. The Medical Evaluation Board (MEB), found that the applicant was unfit to continue service due to chronic and severe PTSD. A Physical Evaluation Board concurred with the MEB that the applicant was unfit to serve due to PTSD. 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), notes indicate the applicant received the following Behavioral Health (BH) diagnoses while on active duty: anxiety DO NOS, acute PTSD and history of concussion. In February 2014, the applicant was submitted for MEB and was not cleared for chapter separation in June 2014. JLV indicates the applicant is 100% service connected, 70% for PTSD. Based on the available information, the applicant has a BH condition which mitigates some of the misconduct which led to separation. In a travel panel hearing conducted at San Antonio, TX on 6 November 2018, and by a 3-2 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, a prior period of honorable service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason and SPD code were proper and equitable and voted not to change them. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contained an erroneous entry. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 27, reentry code changed to 3 (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 10 February 2016 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 29 September 2014 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; On 7 January 2014 he plead guilty to a charge of driving under the Influence that occurred on 26 August 2013 and reckless driving that occurred on 7 June 2013; On or about, 31 March 2014, he drove his vehicle under restraint in violation of Colorado State Statue, Driver's license-permit Unauthorized Person / Driver and plead guilty (18 July 2014); he violated a written order, DoD Directive 1325.06, enclosure 3, paragraph 8, dated 27 November 2009, by wrongfully participating in the criminal gang organization, Sin City Disciples between (9 December 2013 and 1 May 2014); and he committed second degree assault for which he was arrested (26 August 2014). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 20 October 2014 (5) Administrative Separation Board: The applicant requested consideration of his case by an administrative separation board. On 25 November 2014, the Commanding General, Headquarters, 4th Infantry Division and Fort Carson, referred the applicant case to an administrative separation board. On 15 January 2015, the applicant was notified to appear before an administrative separation board and advised of his rights. On 3 February 2015, the administrative separation board convened. The record of evidence shows that the applicant released his military defense counsel for the purposes of his administrative separation board. The board recommended the applicant be discharged with issuance of a characterization of service of under other than honorable conditions. On 11 March 2015, the Commanding General, Headquarters, 4th Infantry Division and Fort Carson, considered the findings and recommendations of the administrative separation board as well as the separation action pertaining to the applicant. The Medical Evaluation Board (MEB) findings indicate that the applicant was diagnosed with chronic Posttraumatic Stress Disorder and Chronic right shoulder strain (dominant). In accordance with AR 635-40, paragraph 4-3, he found that the applicant's medical condition was not a cause or substantial contributing cause of his misconduct, and that other circumstances do not warrant disability processing. He recommend that the applicant's administrative separation be processed under administrative separation provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. He also recommended his service be characterized as under other than honorable conditions. On 14 December 2015, The Assistant Secretary of the Army (Manpower and Reserve Affairs), directed the applicant's separation with an under other than honorable conditions characterization of service. After review of the administrative separation file and the medical evaluation board results, she found that the applicant's medical conditions were not a direct or substantial contributing cause of the conduct that led to his recommended administrative separation. She also found that there are no other circumstances that warrant disability processing instead of administrative separation. The applicant was to be reduced to the lowest enlisted grade. (6) Separation Decision Date / Characterization: 14 December 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 August 2008 / Indefinite b. Age at Enlistment / Education / GT Score: 35 years / College Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-7 / 19K10, M1 Armor Crewman / 25 years, 9 months, 28 days d. Prior Service / Characterizations: ARNG, 13 April 1990 to 4 June 1990 / NA IADT, 5 June 1990 to 10 August 1990 / NA ARNG, 11 August 1990 to 18 June 1991 / NA IADT, 19 June 1991 to 17 August 1991 / UNC ARNG, 18 August 1991 to 1 October 1992 / GD USARCG, 2 October 1992 to 7 November 1995 / NA RA, 8 November 1995 to 9 June 1998 / HD RA, 10 June 1998 to 13 June 2000 / HD RA, 14 June 2000 to 25 June 2003 / HD RA, 26 June 2003 to 19 April 2005 / HD RA, 20 April 2005 to 31 July 2008 / HD e. Overseas Service / Combat Service: Germany / SWA / Kuwait, 15 April 1990 to 15 August 1990 / Iraq x3, 26 April 2003 to 9 December 2003, 9 October 2004 to 22 September 2005, 9 March 2008 to 9 March 2009 and Afghanistan, 28 September 2010 to 21 June 2011 f. Awards and Decorations: BSM, ARCOM-3, AAM-2, AGCM-6, NDSM-2, AFEM-2, ICM-2CS, GWOTEM, ACM-2CS, GWOTSM, AFSM, NOPDR-3, ASR, OSR-5, NATO MDL-2, CAB, VUA, ASUA g. Performance Ratings: 1 December 2007 to 31 October 2013, Among The Best h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA Disability Evaluation System Proposed Rating, dated 14 August 2014, indicates the applicant had service connected disabilities for PTSD (also claimed as memory lapses / loss and was granted a 50 percent disabled rating; post traumatic migraine and tension headaches with a 10 percent disabled rating. Report of Medical Examination, dated 16 September 2015, relates the applicant was diagnosed with PTSD that fell below retention standards, completed a MEB and found to be not retainable, had a separation date; and TBI with post traumatic. Report of Mental Status Evaluation, dated 26 January 2016, revealed the applicant had an Axis I diagnosis of chronic PTSD. He was screened for TBI, PTSD, and alcohol abuse problems; screens were positive for both PTSD and TBI. These conditions have been evaluated previously and per the Integrated Disability Evaluation System, and it has been determined that he falls below retention standards in accordance with AR 40-501, Chapter 3-33 for PTSD and does not fall below retention standards for TBI. He was NOT CLEARED for administrative separation from a psychiatric perspective. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214 (two pages); attorney's brief (eight pages); Exhibit 1, Timeline; Exhibit 2, Personal Statement; Exhibits 3-9, Character Statements; Exhibit 10, Release of Defense Counsel; Exhibit 11, Granted motion to dismiss 2nd degree assault charge; Exhibits 12-19, PTSD stressor statements (six pages); Exhibit 20, Disability Evaluation System Proposed Rating (five pages); Exhibit 21; Letter from Army to U.S. Senator C.G; and Exhibit 22, VA form 526EZ (four pages). 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 an upgrade of the characterization of service from under other than honorable conditions to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting a general (under honorable conditions) or an honorable discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant seeks relief contending, his separation board was based on false accusations and initiated by his former unit which he had no contact; his separation board was established by a unit that had no contact with him (applicant); and the recorder failed to use a Special Assistant US Attorney to assist the Board in understanding the charges; the Recorder incorrectly referred to an alleged driving infraction he was never convicted of, and the Board mistakenly found him guilty of the infraction. The applicant bears the burden of presenting substantial and credible evidence to support this contention that his administrative separation board did not adhere to regulatory guidance. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged or that he was not guilty of the driving infraction. The applicant further contends, he was barred from having military counsel at the hearing. The record of evidence shows that the applicant released his military defense counsel for the purposes of his administrative separation board. The applicant also contends, the allegations by Officer P. were wholly unsubstantiated claims. The record of evidence relates that Officer P. produced a picture of the applicant wearing what appeared to be a vest associated with the Disciples Motorcycle Club. The applicant additionally contends, his association with the motorcycle club was not a violation of the DoD directive. The record of evidence indicates that the applicant admitted that he was associated with the motorcycle club in 2011 to mid-2012. Moreover, he served with distinction for over 20 years, sacrificing everything, including his mental and physical health, for the love of this country. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. Furthermore, it was within the Army's discretion to allow him to execute the retirement orders he received; instead the Army stripped him of all benefits he had earned. 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 applicant contends, he was discharged without his retirement pay. The applicant was administratively discharges for misconduct. Retirement pay is for those Soldiers who serve successfully and meet the requirements to receive retirement pay. The applicant further contends, he was issued a discharge that prevents him from receiving VA compensation benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant also contends, his discharge status makes it extremely difficult to find employment. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Lastly, the applicant contends, a Medical Evaluation Board (MEB), found that he was unfit to continue service due to chronic and severe PTSD; and a Physical Evaluation Board concurred with the MEB that he was unfit to serve due to PTSD. VA Disability Evaluation System Proposed Rating, indicates the applicant had service connected disabilities for PTSD (also claimed as memory lapses / loss and was granted a 50 percent disabled rating; post traumatic migraine and tension headaches with a 10 percent disabled rating. The Mental Status Evaluation, revealed the applicant had an Axis I diagnosis of chronic PTSD. He was screened for TBI, PTSD, and alcohol abuse problems; screens were positive for both PTSD and TBI. He was not cleared for administrative separation from a psychiatric perspective. The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. 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 additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a travel panel hearing conducted at San Antonio, TX on 6 November 2018, and by a 3-2 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, a prior period of honorable service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason and SPD code were proper and equitable and voted not to change them. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27, contained an erroneous entry. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 27, reentry code changed to 3 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change / RE-3 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 AR20170005760 7