1. Applicant's Name: a. Application Date: 3 May 2017 b. Date Received: 8 May 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 (honorable conditions). The applicant seeks relief contending, in effect, that the military failed to counsel him in any way or form about his alleged offense. He contends he was not convicted in a civilian court for the same set of charges that the military saw fit to convict him of due to the same circumstance. At no time did he receive representation nor counseling which was adequate while he was on active duty. He has been formally diagnosed with PTSD and Major Depressive Disorder and the United States Army demonstrated a failure to counsel during his enlistment and during the processes which led to his discharge. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with PTSD. However, due to the nature of the misconduct, PTSD does not mitigate the offenses of assault or communicating a threat. In a records review conducted at Arlington, VA on 7 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: 24 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 March 2011 (2) Basis for Separation: The record does not contain a complete DD Form 458, Charge Sheet; however, it does contain a memorandum of facts from the Acting Staff Judge Advocate, dated 21 June 2011, which indicates on 22 March 2011, the applicant was charged with the following charges: One charge with one specification of Article 80 (attempt to maim SGT S. by attempting to put out SGT S's eye with his finger); One charge with five specification of Article 128 (assault upon SGT S. by pointing a loaded firearm at him) (assault upon SGT S. with means or force likely to produce death or grievous bodily harm, to wit; pointing a loaded weapon at SGT S, charging at SGT S, and attempting to put out SGT S's eye with his finger, acts accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable use of self-defense by SGT S, which resulted in a self- inflected gunshot wound) (assaulted SGT S., by unlawfully striking him in the face) (assaulted SGT S. by unlawfully charging into him with his body) (assaulted upon SGT S., by grabbing him by the throat with his hand); and One charge with one specification of Article 134 (communicating a threat to injure SGT S., by saying "I will kill you" or words to that effect) (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 16 June 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 October 2008 / 6 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13M10, MLRS / HIMARS Crewmen, 14E1P Patriot FC Operator / 8 years, 10 months, 19 days/ d. Prior Service / Characterizations: USAF, 24 May 2000 to 16 June 2000 / UNC (Break-in-Service) RA, 29 August 2002 to 28 August 2006 / HD USARCG, 29 August 2006 to 18 October 2006 / NA RA, 19 October 2006 to 18 November 2007 / HD RA, 19 November 2007 to 9 October 2008 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (23 April 2008 to 10 July 2009) f. Awards and Decorations: AAM-3, AGCM-2, NDSM, GWOTSM, KDSM, ASR, OSR, ICM-2CS, OSR-2 g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: General Officer Letter of Reprimand, dated 25 November 2009, for operating a motor vehicle while under the influence of alcohol with a blood alcohol concentration (BAC) of 0.12 percent. Confinement Order, dated 2 March 2011 in support of pre-trial confinement. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Lawton Police Department Offense Report, which shows the applicant was the subject of investigation for assault with a dangerous weapon Sanity Board Proceedings, dated 16 May 2011, from a Health Service Psychologist show the applicant was diagnosed with an Axis I for alcohol abuse (it was accurate at the time of the offense and at the time of the evaluation, except in controlled environment), alcohol intoxication (at the time of the offense). It was noted that the applicant did not have PTSD at the time of the evaluation. Independent documents submitted by the applicant from the Sheridan VA Medical Center, show the applicant was diagnosed for post-traumatic stress disorder (PTSD) and possible major depression and that he was receiving treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter of support; medical record document from the Sheridan VA Medical Center, which shows the applicant was diagnosed for post- traumatic stress disorder (PTSD) and possible major depression and that he was receiving treatment; letter of support/reference; working copy of his DD Form 214 for the period of service under review. 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 general (honorable conditions). The applicant's 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 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, 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 evidence of record confirms the applicant was charged with the commission of several offenses 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 several acts of significant achievement; however, it appears they did not support the issuance of an honorable or a general (under honorable conditions) discharge by the separation authority at the time of discharge. The applicant seeks relief contending that the military failed to counsel him in any way or form about his alleged offense. He contends he was not convicted in a civilian court for the same set of charges that the military saw fit to convict him of due to the same circumstance. At no time did he receive representation nor counseling which was adequate while he was on active duty. The applicant contentions were noted; however, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the military failed to counsel him in any way or form about his alleged offenses. In fact, evidence found in the applicant's partial separation documents show he did receive legal counsel from L.H.S., a Senior Defense Counsel which result in him requesting for a Chapter 10 discharge. The applicant's statements alone does not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. The applicant also contends he has been formally diagnosed with PTSD and Major Depressive Disorder and the United States Army demonstrated a failure to counsel during his enlistment and during the processes which lead to his discharge. Evidence in the record shows a Sanity Board was conducted on 16 May 2011, and the applicant was diagnosed with an Axis I for alcohol abuse (it was accurate at the time of the offense and at the time of the evaluation, except in controlled environment), alcohol intoxication (at the time of the offense). It was noted that the applicant did not have PTSD at the time of the evaluation. The independent document submitted by the applicant from the Sheridan VA Medical Center, showing the applicant was diagnosed for post-traumatic stress disorder (PTSD) and possible major depression were noted; however, his post-service diagnoses does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 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 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 7 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 AR20170008090 1