1. Applicant's Name: a. Application Date: 13 February 2017 b. Date Received: 15 February 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, suffered from two undiagnosed traumatic brain injuries. The applicant was a stellar Soldier prior to sustaining head injuries. If the TBI had been recognized, the applicant might have been eligible for consideration by a Medical Evaluation Board (MEB). The applicant requests correction of the DD Form 214 to show an ARCOM, AAM and an AGCM. A prior records review was conducted at Arlington, VA on 3 September 2010. 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's medical records were unavailable based on the period of service. In summary, there is sufficient evidence that the applicant suffered a TBI in service that required medical attention, to include several days of hospitalization. However, there is a lack of information regarding the medical discharge, lack of medical follow-up, and reason for no medical profile. Although the TBI diagnosis is substantiated, this condition is not considered related to or mitigating for the offenses which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 3 December 2018, and by a 4- 1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service diagnosis of TBI). 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: 6 June 2008 c. Separation Facts: No (1) Date Charges Were Preferred: NIF (2) Basis for Separation: The available evidence of record does not contain a DD Form 458, Charge Sheet; however, the request for discharge in lieu of trial by court martial shows that the applicant was found guilty by a general court-martial for disobeying a lawful order from an NCO (17 February 2001); disobeying a lawful order from a commissioned officer not to drive with a revoked driver's license (17 February 2001); fleeing apprehension (17 February 2001); physically controlling a vehicle in a reckless manner (17 February 2001); and assaulting an NCO (17 February 2001). He was sentenced to be discharged with a bad conduct-discharge, confinement for 7 months, and reduction to PVT / E-1. The sentence was approved without punishment. The applicant's request for discharge pursuant to the provisions of Chapter 10, AR 635-200 was approved with issuance of a discharge under other than honorable conditions. (3) Recommended Characterization: NIF (4) Legal Consultation Date: 16 May 2002, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 September 1996 / 5 years / the applicant was retained in service 2,446 days for the convenience of the Government per AR 635-200. b. Age at Enlistment / Education / GT Score: 18 years / GED Certificate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 44E10, Machinist / 12 years, 3 months, 14 days d. Prior Service / Characterizations: ARNG, 25 July 1995 to 24 October 1995 / NA IADT, 25 October 1995 to 26 March 1996 / UNC ARNG, 27 March 1996 to 25 September 1996 / NA e. Overseas Service / Combat Service: Germany f. Awards and Decorations: ARCOM, AAM, NDSM-2, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial, dated 23 October 2001, the applicant was found guilty of the following offenses; disobeyed the lawful order from an NCO (17 February 2001); disobeyed the lawful order from a commissioned officer not to drive with a revoked driver's license (17 February 2001); fleeing apprehension (17 February 2001); physically controlling a vehicle in a reckless manner (17 February 2001) and assaulting an NCO with a vehicle (17 February 2001). He was sentenced to reduction to PVT / E-1, confinement for 7 months, and a bad conduct discharge. i. Lost Time / Mode of Return: Military confinement for 170 days, 23 October 2001 until 10 April 2002; also he had 2,249 days of excess leave, 11 April 2002 until 6 June 2008 j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); attorney's brief (seven pages); Enclosure 1, Records request, National Personnel Records Center (54 pages); Enclosure 2, Department of Veterans Affairs, Records Management Center documents (246 pages); Enclosure 3, court proceedings (262 pages); Enclosure 4, support statements / character statements (11 pages); Enclosure 5, Enlisted Record Brief and DD Form 2-1 (8 pages); and Enclosure 6, Cameron University documents and a Joint Services Transcript (10 pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant's counsel states in his brief he (applicant) was employed by American Electric Power in Lawton, Oklahoma, first as a "meter reader," later being promoted to "power plant operator." While working full-time for American Electric Power, he attended Cameron University, in Lawton, Oklahoma, full-time, earning a degree in Electrical Engineering. He later moved to New York, and was employed by Alstom Power from March 2008 until June 2016, earning promotions from a "Field Service Engineer II" to "Senior Field Service Engineer." In June 2016, the applicant was recruited to Consumers Energy, in West Olive, Michigan to be a "Senior Engineering Analyst" responsible for the operations of five (5) coal-powered generation plant furnaces, coal pulverizers, and related operating systems at five different locations in Michigan. 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 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 requests an upgrade of the characterization of service from under other than honorable conditions to honorable. 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 complete 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 not authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge. 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, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial), with a reentry eligibility (RE) code of 4. The applicant through counsel seeks relief contending, he suffered from two undiagnosed traumatic brain injuries. The service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. The applicant further contends, he was a stellar Soldier prior to his sustaining head injuries. 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 also contends, if his TBI been recognized, he might have been eligible for consideration by a Medical Evaluation Board (MEB). 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 requests correction of his DD Form 214 to show award of his ARCOM, AAM and an AGCM. The applicant's requested change to the DD Form 214 does not fall within the purview of the Army Discharge Review Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The third party statements provided with the application speak highly of the applicant. 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. The applicant's post-service accomplishments have been noted as outlined on the application [and in the documents with the application]. It is the applicant's 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. 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): Letters of Support - 3 Pages b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 3 December 2018, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service diagnosis of TBI). 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 AR20090020424 5