1. Applicant's Name: a. Application Date: 28 April 2017 b. Date Received: 4 May 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 change. The applicant seeks relief contending, in effect, that although applicant is still serving the country the best way possible, the applicant has goals to exceed at his job and is unable to further the career with more growth opportunities due to an undesirable discharge. The applicant loves the country and U.S. Army and desires to remain close to them. The applicant served honorably in United States Army for almost two years and loved what was learned during that time. It is this respect and devotion to the Army that drives the applicant's request and desires to be counted among its honorably discharged members. There is absolutely no prejudice to the Government allowing the applicant to be reevaluated and reconsidered by the Honorable Board. In the interest of justice, it seems that such a request for reconsideration is appropriate and warranted. Counsel states, the applicant was on the way out of the Army with an honorable discharge because of a hip injury. The injury limited the applicant from completing Soldier duties as required and because the applicant had just gained custody of his son and could not juggle being a single dad and Soldier. The applicant could not participate in many regular duties due to the injury, which has been recognized by the Department of Veterans Affairs, and because of the applicant's family care plan. The applicant was going through Posttraumatic stress disorder during this time, which was not fully recognized by the applicant or Veteran's Affairs until 2016. The applicant did not understand fully the severity of these feelings or the displayed actions. Counsel details the applicant's condition in the allied legal brief. Counsel states, the applicant's discharge took place almost seven years ago and it is injustice to continue to characterize and punish the applicant for this discharge. Since discharge, the applicant has moved to California with the son and attended a technical college, receiving a diploma in Automotive. The applicant graduated in 2012 and started working at Martain Cadillac and then at Firestone. The applicant moved back to Texas in 2014 and began working for U Haul in December 2014. The applicant has become a U Haul Master technician by taking the proper courses and, within a year, became a team leader of a bay. The applicant is furthering education and providing for his son. The applicant has kept oneself out of trouble since the incident in 2009. 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 is insufficient evidence to determine if the applicant had a medical or behavioral health condition that was mitigating for the offenses which led to separation from the Army. Post-service, the SM does not have a percentage rating from the VA for PTSD, but has received intermittent treatment for non-behavioral health related concerns. In a personal appearance hearing conducted at San Antonio, TX on 7 November 2018, and by a 4-1 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. 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: 8 July 2010 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 13 May 2010, the applicant was charged with: Charge I: Seven specifications of violation of the UCMJ, Article 86: Specification 1: In that the applicant did, on or about 13 April 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 PT formation, in front of building 10010. Specification 2: In that the applicant did, on or about 13 April 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0900 company formation, in front of building 10010. Specification 3: In that the applicant did, on or about 12 April 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 PT formation, in front of building 10010. Specification 4: In that the applicant did, on or about 12 April 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0900 company formation, in front of building 10010. Specification 5: In that the applicant did, on or about 2 March 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0400 accountability formation, in front of building 10010. Specification 6: In that the applicant did, on or about 17 February 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0900 company formation, in front of building 10010. Specification 7: In that the applicant did, on or about 25 January 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0600 company formation, in front of building 10010. Charge II: Violation of the UCMJ, Article 91: The Specification: In that the applicant, on or about 9 March 2010, was disrespectful in deportment toward SSG X, a noncommissioned officer, then known by the applicant to be a noncommissioned officer, who was then in the execution of his office, by yelling at him and refusing to leave the platoon office as ordered. Charge Ill: Violation of the UCMJ, Article 95: The Specification: In that the applicant did, on or about 28 February 2010, flee from apprehension by leading officers of the Killeen Police Department, an organization authorized to apprehend the accused, in a high speed chase into Venable Village. Charge IV: Violation of the UCMJ, Article 108: The Specification: In that the applicant did, on or about 28 February 2010, without proper authority, negligently destroy, by crashing his vehicle into 60109-1 Wainscot, Venable Village, military property of the United States causing damage in excess of $500. Charge V: Violation of the UCMJ, Article 134: The Specification: In that the applicant, the driver of a vehicle at the time of an accident in which said vehicle was involved, and having knowledge of said accident, did, on or about 28 February 2010 wrongfully leave the scene of the accident without making his identity known. (2) Legal Consultation Date: 7 June 2010 (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: 14 June 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 September 2008 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B10, Combat Engineer / 1 year, 9 months, 15 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Killeen Police Department, Arrest Report, dated 28 February 2010, reflects the applicant was arrested for: Unreasonable Noise; and, Evading Arrest with Vehicle. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA disability rating decision, dated 20 April 2016, which reflects the applicant was diagnosed with PTSD for treatment purposes. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; and, legal brief with allied documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant graduated from a technical college and has maintained employment wherein he has become a team leader. He is furthering his education and providing for his son and he states he has not been in any trouble since the incident in 2009. 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 change. 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 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 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 request a change to his RE code. 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 contends the VA has granted him a service connected disability for 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 applicant's service record is void of a mental status evaluation. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong. The counsel's issue about an upgrade based on the time that has elapsed since the discharge was carefully considered. However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. 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 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 personal appearance hearing conducted at San Antonio, TX on 7 November 2018, and by a 4-1 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. 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 AR20170007417 6