1. Applicant's Name: a. Application Date: 22 June 2017 b. Date Received: 27 September 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, he is a combat veteran who suffered from PTSD. He is trying to better his life by getting a better paying job. He did not know what PTSD was and how it affected his life. He states, he just wanted to be a Soldier that his son looked up to. He regrets not accepting the treatment that was offered, but he did not want to be a sick call ranger or miss time with his friends. He has two honorable discharges and he desires the upgrade in order for him to do more for his family and to get his life back in good standing. Currently, he is a Youth Pop Warner Commissioner for the Atlanta southwest region. He is in school using his Post 9/11 GI bill to further his education in aviation mechanics. He attends the Decatur TBI clinic and has a weekly behavior health video conference. He states, he did not know until recently that he had benefits for healthcare. Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV reviewed. AHLTA indicates applicant was seen in theater after being exposed to an IED blast in Iraq. He stated he was in the rear of vehicle when front of vehicle exploded. He denied LOC (Loss of Consciousness) or amnesia but endorsed headache, dizziness, visual disturbances, impaired memory. He had a negative head CT. He was found fit for duty. In Aug 2009-applicant was shot in right forearm while being mugged. He was on emergency leave at the time. In Nov 2009, he screened positive for PTSD and Depression. Reported that he had had two deployments and his recent GSW (gunshot wound) had increased his post-deployment trauma symptoms: increased startle, hypervigilance, nightmares, extreme irritability and increased anger. Diagnosis was deferred. In June 2010, he was referred to FAP (Family Advocacy Program) for being alleged offender of domestic violence toward his spouse. In July 2010, FAP also informed him that his wife had alleged that he was not providing support for her or their child. In July 2010, applicant presented to BH (Behavioral Health) with extreme irritability, severe insomnia (2-3 hours sleep per night) and multiple PTSD symptoms. He reported being exposed to 4 IED blasts during his first deployment, one which resulted in brief LOC and one which resulted in him banging his head. Since the blasts, he has had memory issues. He was diagnosed with PTSD and rule out Post-Concussion Syndrome. In Sep 2010, BH contacted his 1SG to report applicant had been not keeping his appointments. In Oct 2010, applicant underwent TBI (Traumatic Brain Injury) evaluation and was enrolled in TBI program. He was diagnosed with TBI, mild, with LOC less that one hour and Adjustment Disorder. He denied suicidal ideation but reported he was having thoughts of strangling or cutting the brake lines of the male soldier who had recently sexually assaulted him on 17 Nov 2010. In Apr 2012, applicant was a biochemical referral to ASAP for a spice (synthetic marijuana) evaluation. May 2012 BH note indicates applicant was being chaptered out of Army for spice use, patterns of misconduct and other offenses. Applicant indicated that he had self- discontinued his psychiatric medications several months earlier but now wanted to restart them because he was feeling anxious and depressed again. In July 2012, he was seen by BH who reported he was in pretrial confinement for being AWOL and having a positive urinalysis for Spice. He reported having symptoms of nightmares, insomnia, increased anxiety and impaired concentration during this appointment. Review of the VA record indicates that the applicant has been diagnosed with PTSD and TBI. Based on the available information, the applicant has two Behavioral Health Conditions (PTSD and TBI) which mitigate some of his charges. As there is an association between PTSD/TBI and difficulty with authority figures, there is a nexus between applicant's PTSD/TBI and the charge of being disrespectful to an officer. The applicant's diagnosis of PTSD/TBI is considered mitigating for this offense. Neither PTSD nor TBI mitigate the offenses of making false official statements, sexually assaulting Mrs. X, having wrongful sex with SPC X, a married woman, not his wife or unlawfully striking a child with an electrical cord. The medical record documents repeatedly that the applicant was experiencing extreme irritability as a result of his PTSD and TBI. This irritability responded positively to psychiatric medication treatment. Unfortunately, the applicant exhibited a pattern of noncompliance with treatment: he regularly missed his BH appointments and he stopped taking his medications prior to PCSing to Alaska. As indicated previously, the applicant's PTSD and TBI caused him to be extremely irritable which could have contributed to his assaultive behavior toward his wife and others. However, these conditions are not considered mitigating for his assaultive behaviors because he consciously and deliberately chose to be noncompliant with medical treatment which the record documents was effective in reducing the irritability caused by his PTSD and TBI. Regarding his charges of shooting himself in the arm to avoid deployment, there is no documentation in the medical record of this being a self-inflicted GSW In a records review conducted at Arlington, VA on 9 March 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: 11 January 2013 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 15 August 2012, the applicant was charged with: Violating Article 89, UCMJ, for disrespect towards a commissioned officer (21 May 2012); Violating Article 107, UCMJ, two specifications, for making false official statements (18 April 2012); Violating Article 115, UCMJ, for the purpose of avoiding return to deployment in Afghanistan intentionally injure himself by shooting himself in the arm with a firearm between on or about 1 July 2009 and on or about 31 July 2009. Violating Article 120, UCMJ, two specifications, for causing Mrs. X to engage in a sexual act, to wit: penetration of Mrs. X vulva with his penis, by causing bodily harm to her, to wit: the non-consensual touching of Mrs.X (between 1 and 25 August 2008 and on 26 December 2011). Violating Article 128, UCMJ, 30 specifications, for: Unlawfully grabbing, kicking, striking, pushing, assaulting, throwing; squeezing of the neck; pointing an unloaded firearm; pouring beer, syrup, flour and water on the head; and, dragging down stairs Mrs. X on various occasions between 1 May 2008 and 26 December 2011. Unlawfully grabbing; assaulting; squeezing of the neck; and, displaying an unloaded firearm and saying "I'm going to blow your head off," to SPC X between 1 February 2010 and 22 February 2011. Commit assault upon Mr. X by pointing at him a dangerous weapon, to wit: a pair of scissors; and, a Taser (6 and 8 June 2010). Unlawfully strike X, a child under the age of 16 years, on his legs, back and stomach with an audio-visual cable (31 October 2011). Violating Article 134, UCMJ, three specifications, for: Wrongfully having sexual intercourse with SPC X, a married woman not his wife (between 1 November 2009 and or about 25 January 2010. Wrongfully communicate a threat to Mr. X to injure him by saying "meet me around front [of the house]" (6 June 2010). Wrongfully communicate a threat to Mrs. X to injure or kill her by saying "the only way you are leaving [this marriage] is in a body bag" (28 December 2011). (2) Legal Consultation Date: 21 December 2012 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 2 January 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 April 2011 / 4 years b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12R10, Interior Electrician / 7 years, 1 month, 19 days d. Prior Service / Characterizations: RA, 23 November 2005 - 26 April 2011 / HD e. Overseas Service / Combat Service: Alaska, SWA / Afghanistan (27 April 2009 - 27 April 2010), Iraq (25 August 2006 - 7 November 2007) f. Awards and Decorations: ICM-2CS, ARCOM, AGCM, NDSM, ACM-2CS, GWOTSM, NCOPDR, ASR, OSR-2, NATOMDL, CAB g. Performance Ratings: 1 December 2010 - 15 June 2011 / Marginal 16 June 2011 - 23 March 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA medical record problem list, dated 16 January 2018, which reflects the applicant was treated for TBI with moderate loss of consciousness; Chronic PTSD; and, a Sleep Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA medical treatment documents; and, a self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: He states he is a Youth Pop Warner Commissioner and is furthering his education in aviation mechanics. He attends a TBI clinic and has a weekly behavior health video conferences. 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 (under 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 and it does not support an upgrade to an honorable or a general. The applicant contends the VA has granted him a service connected disability for PTSD. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character 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 9 March 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20170016292 1