1. Applicant's Name: a. Application Date: 26 July 2017 b. Date Received: 14 August 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, that the issues were directly related to a disability. The applicant contends that the discharge was based off of one incident in 28 months of service. The applicant returned from OIF 7-9 just a few months before the incident. The incident was dismissed in a court of law. Shortly after returning from Iraq "Still on Active duty," the applicant was at a Squad Leaders house off post at a barbecue. Three civilian's from down the street tried to jump the applicant and beat the applicant up. The applicant was legally caring a firearm at the time and simply drew the fire arm to scare them off. The weapon was never even pointed at them and or any shot's fired. The civilians called the local police in Colorado Springs. The applicant was arrested and charged with menacing with a weapon. The charges were later dropped to a misdemeanor, but was generally discharged before the court ruling because the original charges were a felony. 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 diagnoses of Adjustment Disorder with Mixed Anxiety, Depression, and Alcohol Abuse. The applicant is 70% service-connected for PTSD from the VA. Post-service, the applicant has also been diagnosed with PTSD, Anxiety Disorder NOS, Mood Disorder, and Histrionic traits. In summary, although the applicant has a BH diagnosis, it is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 8 May 2019, 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: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 September 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 August 2009 (2) Basis for Separation: The applicant was informed of the following reasons: wrongfully committing an assault with a dangerous weapon on 25 July 2009 and wrongfully controlling a vehicle while drunk on 28 June 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 September 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 September 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2007 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 87 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 4 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (3 December 2007 to 15 February 2009) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Court documents from the Colorado District & County Courts. Memorandum, dated 14 July 2009, reference the Attendance and Completion of Alcohol and Drug Abuse prevention Program Training (ADAPT) 13-14 July 2009. CG Article 15, dated 27 July 2009, for dereliction of his duties by failing to complete a motorcycle packet before riding his motorcycle on 28 June 2009 and wrongfully consuming alcohol while under the age of 21 years on 28 June 2009. The punishment consisted of reduction to E-3, forfeiture of $409, and extra duty and restriction for 14 days. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 27 July 2009, showing the applicant was diagnosed with an Axis I for adjustment disorder with mixed anxiety and depression. Report of Mental Status Evaluation, dated 28 July 2009, showing the applicant was diagnosed with Axis I for alcohol abuse. It was noted that the applicant met retention criteria, had not deployed, and had evidence of a pre-existing psychological condition. Would be in the best interest of the Army to administratively separated IAW Chapter 5-17, other pre-existing medical or mental condition, maladaptive patterns of behavior. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Department of Veterans Affairs review post-traumatic stress disorder (PTSD) disability benefits questionnaire, and a letter from the Department of Veterans Affairs showing the applicant is receiving 70 percent service connected disability. 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. 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 general (under honorable conditions) discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active duty. The applicant seeks relief contending that his discharge was based off of one incident in 28 months of service. He returned from OIF 7-9 just a few months before his incident. His incident was dismissed in court of law. Shortly after returning from Iraq "Still on Active duty," he was at a Squad Leaders house off post at a barbecue. Three civilian's from down the street tried to jump on him and beat him up. He was legally caring a fire arm at the time and simply drew the fire arm to scare them off. The weapon was never even pointed at them and or any shot's fired. The civilians called the local police in Colorado Springs. He was arrested and charged with menacing with a weapon. The charges were later dropped to a misdemeanor, but he was generally discharged before the court ruling because the original charges were a felony. The applicant's contentions were noted; however, the service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. Additionally, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 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 8 May 2019, 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 AR20170016215 1