1. Applicant's Name: a. Application Date: 15 August 2017 b. Date Received: 16 August 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 honorable. The applicant seeks relief contending, in effect, he did not have a chance to defend himself and he was not afforded the opportunity of bail. He was placed on suicide watch throughout his incarceration in the county jail. He pled nolo contender and the state was threatening to give him twenty one years of incarceration. He had no proof of his innocence without discrediting his wife and his unit. He served eighty five percent of his five year sentence and he is now serving probation for five more years. He states, he served his country honorably with national pride on active duty for twelve years. An upgrade is important to his five children, his mother, and his father and to himself. He requests that the Board assist him in regaining part of his dignity and he desires to have his job back. A review of electronic military medical records revealed in-service diagnoses of Alcohol Dependence, Marital Problem, and PTSD. SM was seen by behavioral health on 14 September 2010 for marital stress and family stress. Medical note 10 August 2011 indicated SM reported hiding his drinking from his wife for over a year and that upon finding out, she threatened to leave with their 6 kids. SM later called the VA hotline after and admitted to having suicidal thoughts and reported having guns in his house. He admitted to having a serious drinking problem and he was inpatient hospitalized at a residential facility (2-3 weeks). Medical note dated 13 September 2011 indicated SM reported a childhood sexual assault at the age of 13 in a school locker room and reported that his drinking started after this incident to include heavy beer and hard liquor consumption that affected his academic performance, relationships and home environment. Medial record dated 26 September 2011 indicated SM relapsed (drank 1 pint of vodka) after learning about his wife's pregnancy. Record also indicated SM had tested positive for benzodiazepines, which he denied taking and was not prescribed. Medical note dated 4 October 2011 indicated SM was incarcerated and may not be released on bond. A Command directed eval was conducted 6 December 2011 and indicated SM was incarcerated for aggravated assault and battery of his then pregnant wife. He reported they were fighting because he questioned if she was carrying his child. He reported being so upset during the argument that he intended to kill himself. He put a gun to his mouth, his wife wrestled it out of his hands and they both fell on the ground, resulting in her injuries. He reported that he called the cops on himself and was charged with assault and battery of his pregnant wife, specifically that he threw her against the wall, slamming her into the freezer, slapping and punching her face and strangling her. Following his arrest, his wife had a miscarriage and was keeping the miscarried fetus in the freezer and demanding a DNA sample to prove SM was the father. At the personal appearance, SM reported not having any discharge paperwork due to being in civil confinement and finding out about his separation while incarcerated. He reported being sentenced for 5 years and serving 85% of his sentencing prior to being released with 5 years of probation. He reported his charges to be aggravated assault and battery and shooting a weapon in his home. Contrary to medical records, he denied having a drinking problem and reported "acting crazy" in jail in order to be left alone. He described being incarcerated in Florida as "torture" but denied wanting a diagnosis of PTSD, stating "I do not have a disorder and I do not want money for having a disorder." According to VA medical records, SM is ineligible for services due to his characterization; however, he has sought help from the VA in hopes that he will receive assistance with returning to the military. SM reported that despite his characterization, he has been contacted by the VA regarding his PTSD diagnosis and eligibility for disability by on his condition, which he has denied wanting. According to VA records, SM has also had issues with homelessness, finances, and continued family stressors. In summary, SM does not have a mitigating medical or behavioral health condition for his misconduct of domestic violence and firing a weapon in his home. He was responsible for his behavior and able to determine right from wrong at the time of the incident. SM does however have significant behavioral health conditions that have impacted his cognitive and behavioral functioning. His difficulties appear to be a result of significant alcoholism, which he denies, but there is a preponderance of evidence through medical records that he has consistently abused alcohol since the age of 13. Alcohol can be associated with significant cognitive changes to include a loss of inhibitions, confused or abnormal thinking, and poor decision-making. Most heavy long-term alcohol users will experience mild to moderate impairment of intellectual functioning, even if sobriety is attained. For this reason, it is recommended that an upgrade in characterization be considered in ordered to provide SM full access to VA services for medical and behavioral health care. In a personal appearance hearing conducted at Arlington, VA on 21 May 2018, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, board judgement, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD), and as a result it is inequitable. 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: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 22 August 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 February 2008 / 4 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-7 / 18C4P, Special Forces Engineer / 12 years, 2 months, 6 days d. Prior Service / Characterizations: RA, 27 July 1999 - 26 July 2004 / HD RA, 27 July 2004 - 24 February 2008 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (26 April 2008 - 1 February 2009) (14 July 2009 - 26 November 2009), Iraq (11 April 2003 - 10 April 2004) f. Awards and Decorations: ACM-CS, BSM-2, ARCOM-6, AAM-4, MUC, AGCM-3, GWOTSM, HSM-2, ICM-CS, NCOPDR-3, ASR, NATOMDL, CIB, EIB g. Performance Ratings: 31 July 2006 - 10 July 2008 / Among The Best 11 July 2008 - 31 May 2009 / Among The Best 31 May 2009 - 30 May 2010 / Fully Capable 31 May 2010 - 30 May 2011 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: 324 days (NIF, 3 October 2011 - 22 August 2012) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application and copies of his military awards and certificates. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge 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 specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant provided an "Archive" copy of a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows the applicant was not available for signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), 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 in reference to not having no proof of his innocence without discrediting his wife or his unit 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 that he had good service which included three combat tours. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding based on the limited documents in his records were carefully considered. The applicant is to be commended for his accomplishments. The applicant requests a change to the characterization of his service in order to rejoin the Army. However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 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): None. b. The applicant presented the following additional contention(s): None. c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 21 May 2018, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, board judgement, and the circumstances surrounding the discharge (i.e. in-service and post- service diagnosis of PTSD), and as a result it is inequitable. 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 AR20170012463 4