1. Applicant's Name: a. Application Date: 4 July 2017 b. Date Received: 10 July 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, the characterization of service has served its intended purpose. The applicant's mental health care provider realized the applicant was in a vulnerable state due to PTSD and took advantage of the mental state by initiating an intimate relationship; and her actions were reported to the police, which subjected him to additional ridicule but eventually resulted in her facing disciplinary proceedings by the Colorado State Board of Psychologist Examiners. Since discharge, the applicant completed three degrees through Colorado Technical University (CTU), an Associate's and two Bachelor's. 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), notes indicate the following Behavioral Health conditions: Acute PTSD, Adjustment Disorder, Anxiety Disorder NOS, Bipolar Disorder, Cyclothymic Disorder, Depression, Cannabis Abuse, and Personality Disorder. Based on the available information, the applicant has BH conditions that are mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 12 December 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of MST and PTSD), a prior period of honorable service, and post- service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635- 200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (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: 17 October 2011 c. Separation Facts: Yes (1) Date Charges Were Preferred: 13 September 2011 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 13 September 2011, the applicant was charged with the following offenses; wrongful use of marijuana x4 between (30 August 2010 and 30 September 2010), (31 December 2010 and 31 January 2011), (16 February 2011 and 16 March 2011) and (19 June 2011 and 19 July 2011). (3) Recommended Characterization: The applicant's chain of command recommended a General (Under Honorable Conditions) discharge. (4) Legal Consultation Date: 16 September 2011, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 29 September 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 October 2006 / 3 years, 2 weeks / reenlistment documents extending the applicant to his discharge date is not contained in the available record. However, his Enlisted Record Brief shows his ETS as 17 October 2011. b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19D10, Cavalry Scout / 91J10, Quartermaster and Chemical Equipment Repairer / 6 years, 1 month, 15 days d. Prior Service / Characterizations: e. Overseas Service / Combat Service: SWA / Iraq x2, 22 March 2010 to 19 August 2010 and 29 July 2007 to 30 October 2008 f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, ICM-2CS, GWOTSM, ASR, AFOLT g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Positive urinalysis test coded IU (Inspection Unit), dated 30 September 2010, for THC. Positive urinalysis tests coded IR (Inspection Random), dated 31 January 2011, 30 March 2011 and 19 July 2011, all for THC. Positive urinalysis test coded PO (Probable Cause), dated 24 February 2011 and 16 March 2011, both for THC. FG Article 15, dated 10 May 2011, for without authority, fail to go at the time prescribed to his appointed place of duty x2 (7 March 2011 and 8 March 2011); the punishment imposed is not contained in the available record. The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); self-authored statement; State of Colorado Board of Psychologist Examiners proceedings (seven pages); Colorado Board of Psychologist Examiners, Order of Summary Suspension (two pages); licensee information (three pages); Colorado, Department of Regulatory Agencies (five pages); Colorado Technical University, Bachelor Certificate; Colorado Technical University, Associate Certificate; three letters, Ronald McDonald House Charities; letter, Catholic Charities; two support statements; Student Senate Account Growth Chart (two pages); and a DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he started his own business, Reach Networking, which provided non-profit organizations an alternative avenue to fundraising without the normal investment of time and personnel. He also works a full-time job as an Assistant Store Manager at O'Reilly Auto Parts in Castle Rock, Colorado. He started as a retail service specialist but was promoted to his current position within six months. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant's available 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 several acts of significant achievement and valor to include combat service; however, it did not support the issuance of an honorable or a general discharge by the separation authority at the time of separation. The applicant seeks relief contending, his characterization of service has served its intended purpose. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct or in lieu of trial by court martial. The applicant further contends, his mental health care provider realized he was in a vulnerable state due to PTSD; she took advantage of his mental state by initiating an intimate relationship; and her actions were reported to the police, which subjected him to additional ridicule but eventually resulted in her facing disciplinary proceedings by the Colorado State Board of Psychologist Examiners. The service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The record does show his mental health provider was licensed to practice as a psychologist in the State of Colorado. She engaged in a sexual contact as defined in§ 18-3-401, C.R.S. with a client during a period of time less than two years after the therapeutic relationship with the client terminated. On December 31, 2012, she was arrested and charged with one count of sexual assault on a client by a psychotherapist, a class four felony, in violation of section 18-3-405.5, C.R.S. Since his discharge, he completed three degrees through Colorado Technical University (CTU), an Associate's and two Bachelor's. The applicant's post-service accomplishments have been noted as outlined on the application and in the documents with the application. The third party statements provided with the application speak highly of the applicant. 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 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 12 December 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of MST and PTSD), a prior period of honorable service, and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20170013370 6