1. Applicant's Name: a. Application Date: 10 January 2017 b. Date Received: 10 January 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, on or around the month of June 2006, the applicant enlisted in Army and entered basic training at Fort Benning, Georgia. During his training, he fell from the obstacle known as the "Weaver," but he did not pursue treatment at the time of the incident, because he was told by one NCO, that if he pursued treatment, he would have to restart all of his training. He states, his chain of command falsified his final PT scores in order to move the applicant to AIT and to maintain their first sergeant's record. The applicant's scores reflect that he failed by two push-ups, two sit ups, and ten seconds on the two mile run. During his AIT, his chain of command falsified his PT scores in order to move the applicant to his permanent duty station. Evidence of this can be found in the fact that he was a "hold-over" at Fort Jackson, South Carolina for PT. After arriving at Fort Polk, Louisiana, SFC A took note that the applicant was struggling in PT, and he proceeded to have the applicant discharged on negative terms. After PT one morning, CWO D stopped the applicant and put him in the position of rest and told him that he could tell that there was something wrong with him. He then instructed him to go to the troop medical center and tell them what was ailing him and told the applicant that if he did not, he would do whatever he could to put him out on negative terms. CWO D marched the applicant directly to the troop medical center and where the applicant explained to them that he was experiencing lower back pain that began after his fall in BCT. The TMC performed a series of tests and discovered that the fall had caused herniated discs, and that the applicant also had degenerative disc disease. The doctors at Fort Polk began treatment for his condition. When he went to his appointment at the Fort Polk Community Hospital, a doctor entered the room and asked the applicant if he wanted to stay in the Army or get out. The applicant asked the doctor for time to consider this question, but the doctor denied his request, and demanded an answer immediately. The applicant took a moment, and contemplated the situation that he was in and believed that it was in his best interest to opt out. The doctors began the Medical Board process and eventually issued orders to transfer him to the Warrior Transition Unit. The applicant states that he became disheartened and depressed as some in his chain of command were using him as an example of a bad Soldier. The applicant eventually stopped participating in company formation and began reacting very negatively to the threats from some in his chain of command i.e. "You think you going somewhere? You ain't going nowhere, I got something for that ass." The applicant began to cuss some NCOs out, and after finding out that Captain X had interfered with the applicant's divorce and custody proceedings in Columbus, Nebraska, the applicant also cussed at her. The applicant states, he used marijuana to give SFC X the evidence he needed to finally put the applicant out of the Army. He states, his chain of command received orders to transition the applicant to the Warrior Transition Unit and discarded them, and denied the existence of the orders. The applicant states, after his sentencing, he served his time in Beauregard Parish Sheriff's Office, and his chain of command left him in the jail for an extra five days past his sentence. The applicant states that his statements about his unit are not to justify his actions. He knows what he did was wrong, and he does not want to make excuses for his actions. He has suffered almost ten years in physical pain, without medical treatment and he has missed out on countless work opportunities due to the injury, and/or status of discharge. He has lived in homeless shelters, and homeless camps most of this time and he was willing to accept this, but now he has a family, and his family has needs that he cannot fulfill in his current condition. He respectfully requests an upgrade of discharge to honorable, to allow him access treatment for his condition that was clearly set in motion by his service. He provides a letter from the special court-martial convening authority of Fort Polk at that time, LTG X (Retired), who confirms and requests an upgrade of the applicant's discharge and a review of his medical profile for a service-connected disability. In a records review conducted at Arlington, VA on 28 September 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (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 August 2011 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 15, dated 31 July 2008, on 4 March 2008, the applicant was found guilty of the following: Charge I. Article 86. Plea: Guilty. Finding: Guilty. Specification 1: The applicant on divers occasions, between on or about 17 August 2007 to on or about 19 November 2007, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 PT Formation and/or 0900 work call formation and/or 1300 afternoon formation and/or extra duty at 1800 hours. Plea: Guilty, except to the words "on divers occasions at or near Fort Polk, Louisiana, between on or about 17 August 2007 to on/or about 19 November 2007, without authority fail to go at the time prescribed to his appointed place of duty, to wit: 0630 PT formation, and/or 0900 work call formation, and/or 1300 afternoon formation, and/or extra duty at 1800 hours", substituting the words "did at or near Fort Polk, Louisiana, on 18 August 2007 at 0630 PT formation, 29 August 2007 at 0615 PT formation, 5 September 2007 at 0600 PT formation, 17 October 2007 at 0900 work call formation, 9 November 2007 at 0630 PT formation, and 19 November 2007 at 0630 PT formation without authority failed to go at these times prescribed to his appointed place of duty, to wit: PT formation, and/or work call formation at his unit,..." To the excepted words, Not Guilty. To the substituted words, Guilty. Finding: Guilty. Specifications 2, 3 and 4, were dismissed upon Motion by Trial Counsel. Charge II. Article 87. Plea: Guilty. Finding: Guilty. Specification: The applicant, did, on or about 29 October 2007, through design miss the movement, which he was required in the course of duty to move. Plea: Finding: Guilty. Charge Ill. Article 89. Plea: Guilty, except to the words "trying to break from the grips of the DA police officer", substituting the words "trying to pull the DA police officer outside." To the excepted words: Not Guilty. To the substituted words: Guilty. Finding: Guilty. Specification: The applicant, did, on or about 5 December 2007, behave himself with disrespect toward CPT X, his superior commissioned officer, then known by the applicant to be his superior commissioned officer, by saying to her "You don't deserve to breathe" and "the little jail time you are gonna give me don't mean shit" and "get me away from that bitch" or words to that effect, while trying to break free from the grips of the DA Police officers. Plea: Guilty, except to the words "trying to break from the grips of the DA police officer", substituting the words "trying to pull the DA police officer outside." To the excepted words: Not Guilty. To the substituted words: Guilty. Finding: Guilty. Charge IV. Article 91. Plea: Guilty. Finding: Guilty. Specification 1: The applicant, having received a lawful order from 1SG T, a superior non-commissioned officer, then known by the applicant to be a superior non-commissioned officer, to get dressed in 10 minutes and report to Bayou Theatre, an order which it was his duty to obey, did, on or about 17 August 2007, willfully disobey the same. Plea: Guilty. Finding: Guilty. Specification 2, was dismissed upon Motion by Trial Counsel. Specification 3: The applicant, on or about 9 November 2007, was disrespectful in language toward SGT X, a superior non-commissioned officer, then known by the applicant to be a superior non-commissioned officer, who was in the execution of his office, by saying to him "I don't like the way you are talking to me, I have a 159 IQ so talk to me better," or words to that effect. Plea: Guilty. Finding Guilty. Specification 4: The applicant, on or about 14 November 2007, was disrespectful in language toward SSG X, a superior non-commissioned officer, then known by the applicant to be a superior non-commissioned officer, who was in the execution of his office, by saying to him "I'm not fucking coming to PT," or words to that effect. Plea: Guilty, except to the words "language", substituting the words "deportment", and except to the words "by saying to him 'I am not fucking coming to PT" or words to that effect", substituting the words "by ignoring him." To the excepted words: Not Guilty. To the substituted words: Guilty. Finding: Guilty. Specification 5: The applicant, on or about 14 November 2007, was disrespectful in language toward SFC X, a superior non-commissioned officer, then known by the applicant to be a superior non-commissioned officer, who was in the execution of his office, by saying to him "Don't you fucking talk to me" and "You do not need to address me as [the applicant]," or words to that effect. Plea: Guilty. Finding: Guilty. Specification 6: The applicant, having received a lawful order from X and/or SGT X, superior noncommissioned officers, then known by the applicant to be superior non- commissioned officers, to get up and go to work, an order which it was his duty to obey, did on divers occasions, between on or about 21 November 2007 to on or about 5 December 2007, willfully disobeyed the same. Plea: Guilty. Finding: Guilty. Specification 7: The applicant, between on or about 21 November 2007 to on or about 5 December 2007, was on divers occasions disrespectful in language toward SSG and/or SGT X, superior non-commissioned officers, then known by the applicant to be superior non- commissioned officers, who was in the execution of his office, by saying to him "I'm not fucking coming to work," or words to that effect. Plea: Guilty. Finding: Guilty. Charge V. Article 112a. Plea: Guilty. Finding: Guilty. The Specification: The applicant, did, between on or about 30 July 2007 to on or about 28 August 2007, wrongfully use marijuana. Plea: Guilty. Finding: Guilty. The Additional Charge: Article 86. Plea: Guilty. Finding: Guilty. Specification 1: The applicant, did, on 21, 22, 23, 24, 5, 26, 27, and 28 November 2007, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 PT Formation and 0900 work call formation and 1300 afternoon formation. Plea: Guilty. Finding: Guilty. Specification 2: The applicant, did, on 30 November, 1, 2, 3, 4, and 5 December 2007, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 PT Formation and 0900 work call formation and 1300 afternoon formation. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Forfeit $500 per month per month for 6 months; to be confined for 6 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 31 July 2008 / In the case of applicant, the findings of guilty and the sentence were disapproved. The applicant's request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, were approved on 28 July 2008, for the issuance of a discharge under other than honorable conditions. The charges and specifications were dismissed. All rights, privileges, and property of which the applicant had been deprived by virtue of these proceedings were ordered restored. (4) Separation Decision Date/Characterization: 31 July 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 June 2006 / 6 years, 24 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 / 63B10, Wheeled Vehicle Mechanic / 5 years, 1 month, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTEM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 4 March 2008; and, From "CMA" to "PDY," effective 22 March 2008. The applicant provided a letter from the Special Court-Martial Convening Authority, LTG B, dated 18 December 2014, wherein he stated that he learned of additional information, after the fact, that had he known it at the time of the applicant's Special Court-Martial, it would have caused him to approve an honorable discharge. i. Lost Time / Mode of Return: 24 days: AWOL, 30 November 2007 - 5 December 2007 / The applicant returned to his unit. Confined by Military Authorities, 4 March 2008 - 21 March 2008 / Released from confinement. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; a Self-authored statement; and, a letter from the Special Court-Martial Convening Authority. 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. 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 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. 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 that he was depressed. However, the service record contains no evidence of depression diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends that medical issues contributed to his discharge from the Army. However, 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 contends that his unit falsified his training records and discarded his orders to be reassigned to a Warrior Transition Unit. The applicant provides a letter from the Special Court- Martial Convening Authority, which he contends supports his contentions. 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 an upgrade of his discharge would allow medical benefits through the VA. However, eligibility for veteran's benefits to include medical benefits 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 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 September 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change 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 AR20170008017 1