1. Applicant's Name: a. Application Date: 24 April 2017 b. Date Received: 25 April 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, has suffered from PTSD for years since witnessing a friend's death. The applicant's accomplishments during a brief military service and recent post-service conduct are true reflections of the applicant's character and demonstrate that any acts of misconduct which led to the bad discharge were aberrations that can be explained. Counsel states, the applicant's discharge is improper because the bad conduct allegations either are unsupported or were excessively harsh, the applicant's circumstances. There is no evidence that charges were ever preferred against the applicant. Based on current guidance relating to PTSD and similar decisions rendered by the Board, the applicant merits an upgrade. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record and the Armed Forces Health Longitudinal Technology Application (AHLTA), the applicant did not have any medical records based on the period of service. Post-service, the applicant does not have a service-connected disability rating, but has been seen on a few occasions (from January 2017-present) and was diagnosed with PTSD in January 2017. In a Behavioral Health (BH) note dated 24 February 2015, indicated the applicant has received treatment for PTSD and Depressive Disorder. In summary, the applicant has a diagnosis of PTSD that is not combat related, but stems from an incident that occurred in service and is partially mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 3 December 2018, and by a 5- 0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-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, 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: 9 May 2002 c. Separation Facts: (1) DD Form 458 (Charge Sheet): The applicant's service record is void of the Charge Sheet, however, on 28 March 2002, the applicant voluntarily requested a discharge in lieue of trial by court-martial, wherein he acknowledged that charges had been preferred against him: Article 80, Attempt to Defraud; and, Artilce 91, Insubordinate Conduct Toward Noncommissioned Officer. (2) Legal Consultation Date: 28 March 2002 (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: 4 April 2002 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 August 2000 / 2 years b. Age at Enlistment / Education / GT Score: 25 / Some College / 110 c. Highest Grade Achieved / MOS / Total Service: E-2 / 13B10, Cannon Crewmember / 1 year, 9 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - Initial Final (redacted), dated 3 March 2002, reflects an investigation established probable cause to believe the applicant committed the offense of Attempted Receipt of Services Under False Pretenses when he applied for various credit loans from local retailers as PFC [redacted], a false name and Social Security Number. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 6 March 2002; and, From "AWOL" to "Present for Duty)," effective 8 March 2002. Military Police Report, dated 21 May 2002, reflects the applicant was apprehended for: Failure to Appear (Off Post). An investigation revealed that the applicant was arrested by a Riley County Police Officer on a bench warrant for Failure to Appear. i. Lost Time / Mode of Return: 2 Days (AWOL, 6 March 2002 - 7 March 2002) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 1 May 2002, reflects the applicant was cleared for administrative actions deemed appropriate by the command. An evaluation revealed that the applicant had been seen for treatment of Acute Stress Disorder and Bereavement. He denied any suicidal ideation, but continued to experience frustration with unit handling of past event related to death of another unit member. During the course of treatment, the applicant reported difficulties in participation with treatment due to his inability to attend sessions. The applicant continued to present with maladaptive coping skills related to Post-Traumatic Stress Disorder and therefore, he should be considered suitable for Chapter 5-17, although the unit may prefer to chapter him under Chapter 10 for other patterns of misconduct. The applicant provided a letter from Chaperon Therapy LCSW-R PC, dated 24 February 2015, which reflects the applicant received treatment for PTSD and Depressive Disorder. The applicant provided a letter from Dr. A E., M.D., F.A.P.A. Diplomate of the American Board Of Psychiatry and Neurology Assistant Professor of Psychiatry Mount Sinai School of Medicine, dated 27 April 2017, which reflects that Dr. A E., evaluated the applicant. At the time of his evaluation, it was Dr. A E's impression that the applicant suffers from Depression, Generalized Anxiety and Post Traumatic Stress Disorder, secondary to his service in the Army, when he witnessed a friend of his being shot. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he found employment at a barbershop in Jamaica Queens; worked for a moving company; and, for H&R Block during tax season. In 2009 he purchased his own barbershop. The applicant latter volunteered at the Legal Aid Society and later was hired on a permanent basis. 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. 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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable conditions. The applicant's record of service, 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 there is no evidence that charges were ever preferred against and his service record is void of any evidence of charge sheet. However, 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 character of the applicant's discharge is commensurate with his overall service record. The applicant contends that he was singled out by his leadership; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant's service record contains documentation that supports a diagnosis of in service PTSD; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 1 May 2002, the applicant underwent a mental status evaluation, which indicates he was mentally responsible with a clear thought content. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. 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 at the time of discharge. The applicant contends that he had good service. 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. The applicant is to be commended for his accomplishments. The applicant contends that other applicants have been granted relief by the Board wherein PTSD was a mitigating factor. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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 third party statements provided with the application speak highly of the applicant's 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. 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): Affidavit of Gary Harris - 3 Pages Affidavit of Jenny Weeks - 2 Pages Employment Documents - 5 Pages b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 3 December 2018, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-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, SPD code and RE code were proper and equitable and voted not to change them. 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 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 AR20170006968 5