1. Applicant's Name: a. Application Date: 14 April 2017 b. Date Received: 17 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, a narrative reason change and an reentry (RE) code. The applicant seeks relief contending, in effect, suffers from PTSD and is struggling to get the help needed. The applicant has claims pending with the Department of Veteran's Affairs, but has not been treated or seen by a physician since separation, and does not yet know if treatment will be provided through the VA. The applicant states the current discharge has prevented many employment opportunities and the applicant has been looking for stable employment in an environment in order to manage the PTSD symptoms. An upgrade to honorable would not only fairly characterize years of service and combat deployment with Special Forces, but it would greatly assist in getting the medical care the applicant needs and employment where the applicant can safely manage the symptoms and build a professional career. The applicant does not contest the drug abuse or the propriety of discharge. This request for upgrade is based on equity. The applicant's service prior to 2015 was remarkable. NCOERs and service records demonstrate that the applicant was among the most capable of NCOs in the U.S. Army. The applicant received a Bronze Star Medal for service and numerous other campaign medals and awards. The mitigating circumstances of the PTSD outweighs the severity of drug abuse. The Board should liberally grant relief to the applicant to ensure that the applicant's service is fairly characterized and that the applicant can get all the necessary treatment. As MG G noted, the applicant's service was otherwise "honest, faithful, and meritorious." 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 following diagnoses: Adjustment Disorder with anxiety and depression, Major Depressive Disorder, severe, Cognitive Disorder, mild TBI, PTSD, Post-traumatic headache, Alcohol Dependence, Cannabis Dependence, Polysubstance Dependence. Behavioral Health (BH) notes indicate applicant was diagnosed and treated for PTSD symptoms and Major Depression while on active duty. Veteran's Affairs (VA) records indicate the applicant is 80% service connected; 70% for PTSD. Based on the available information and in accordance with the Liberal Guidance memorandum, the applicant has a mitigating BH diagnosis which is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 28 November 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, homelessness, and the circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD and TBI). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (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: 31 March 2016 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (2) Legal Consultation Date: NIF (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 March 2016 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 September 2013 / 6 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-7 / 18B4P, SF Weapons Sergeant / 11 years, 3 months, 2 days d. Prior Service / Characterizations: RA, 29 December 2004 - 24 September 2013 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (18 January 2008 - 18 January 2009 / 27 November 2012 - 5 January 2013 / 27 February 2013 - 5 June 2013), Iraq (1 November 2005 - 1 November 2006) f. Awards and Decorations: ACM-2CS, BSM, ARCOM, AAM-2, AGCM-3, NDSM, GWOTSM, ICM-CS, NCOPDR-2, ASR, OSR-2, NATOMDL, CIB-2, CAB g. Performance Ratings: 14 September 2013 - 13 September 2014 / Fully Capable 14 September 2014 - 13 September 2015 / Marginal h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Sanity Board Evaluation, dated 14 March 2016, reflects the applicant was diagnosed with: PTSD, Alcohol Dependence, Cannabis Dependence (Axis I); Avoidant & Dependent Traits (Axis II); and, Traumatic Brain Injury, by history (Axis III). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief and all listed enclosures. 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. Army Regulation 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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable, a narrative reason change and a reentry (RE) code. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain 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 AR 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial, with a characterization of service of Under Other Than Honorable Conditions. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant's contentions about his discharge should be upgraded based on equity was 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 which 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 any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 10, AR 635-200, with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant requests an RE code change. However, 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 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 the separation authority found that the offenses on which this discharge was based were not willful and persistent misconduct for the purposes of a VA benefits determination. He recommended that 38 C.F.R. § 3.12(d)(4) or any other applicable subsection not serve as a bar to VA benefits. The applicant was diagnosed with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) that was service related and may have attributed to his misconduct. While these circumstances do not present a valid legal defense, they were extenuating and mitigating for separation authority to recommend that any statutory bar to benefits not apply. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant contends that he had good service which included four combat tours. 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. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 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 that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 November 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, homelessness, and the circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD and TBI). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 10. 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, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20170006973 1