1. Applicant's Name: a. Application Date: 11 September 2017 b. Date Received: 10 October 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, the current discharge is too harsh and unjust when measured against an exemplary service record, no other disciplinary incidents, and outstanding post- service accomplishments, an inequity in overall characterization exists. The following are contributing mitigating factors: there was a coercive and hostile atmosphere surrounding the investigation of the incident which led to discharge, the arbitrary and capricious actions and advisement of leadership, inadequate legal counsel, high optempo including a previous deployment and active ground combat at the time of the incident, and family and personal problems to include infidelity on the part of the spouse. There was also an erroneous charge of discharging a weapon, when in fact, it was committed by the spouse, who was charged and convicted of the act. Although the applicant had not been diagnosed or claimed to have PTSD, there was stress and its effects from a previous combat deployment that included the death of a close friend, and subsequent effects of prioritizations and decision making. The applicant endured over 13 years of the harshness of the consequences of discharge that prevented professional opportunities, career advancement, and denial of VA medical care and home loans. Despite, the Maui Police Department records show the applicant had eight years of post- service career as a law enforcement officer and narcotics investigator. The applicant's continued service to the community include being a high school sports coach, Nature Conservancy guide, and scheduled rotations at Molokai General Hospital. The applicant's potential for advancing as a law enforcement officer and furthering an education to a future career as a physician would continually be inhibited by the current characterization of service, leading to a disservice to society. The applicant faced prejudice, denied countless employment and educational opportunities, and faced a myriad of social difficulties associated with less than an honorable discharge. In a self-authored statement, the applicant detailed the circumstances and events leading up to the discharge, service achievements and awards, the stresses of the deployment experiences in Afghanistan, post-service accomplishments and achievements, and employment. The applicant asserts that total circumstances at the time, in a professional and personal life, and the experiences of deployment led the applicant to make unwise decisions, and that the priority should have been adherence to regulations. The incident that led to discharge was the only disciplinary action against the applicant in over five years of active duty. The applicant submitted to a Chapter 10 discharge to avoid any jail time and being separated from the children because the then-spouse was pending trial for discharging the firearm and facing potential incarceration, as well. 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 no BH information regarding the applicant. There are no records indicating the applicant has been diagnosed with PTSD. In summary, there is insufficient evidence to determine if the applicant had a BH diagnosis that was mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 17 April 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 April 2004 c. Separation Facts: (1) Special Court-Martial (SPCM) Order: SPCM Order No. 11, dated 5 April 2004, indicates that although the applicant was arraigned, the court-martial proceeding were terminated and the following charges and its specifications were dismissed to effect the applicant's approved discharge pursuant to Chapter 10, AR 635-200, in lieu of trial by court- martial: Charge I: Violation of Article 92, UCMJ, for violating a lawful general regulation between 27 November 2000 and 26 August 2003, by wrongfully failing to register a privately owned weapon. Charge II: Violation of Article 121, UCMJ, for stealing ammunitions, the military property of a value less than $500, on divers occasions between 1 January 1999 and 1 August 2003. Charge III: Violation of Article 134, UCMJ, through negligence, discharging a privately owned firearm between 1 January 2002 and 1 August 2002. (2) Legal Consultation Date: 20 January 2004 (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: 27 February 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 October 2002 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 126 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B3P, Infantryman / 7 years, 4 months, 10 days d. Prior Service / Characterizations: USAR (3 December 1996 to 11 August 1997) / NA IADT (12 August 1997 to 3 February 1998) / HD USAR (4 February 1998 to 29 March 1999) / NA RA (30 March 1999 to 28 October 2002) / HD e. Overseas Service / Combat Service: SWA / Afghanistan (18 August 2002 to 23 January 2003) f. Awards and Decorations: ARCOM; AAM-6; AGCM; NDSM; GWOTEM; GWOTSM; NCOPDR-2; ASR; CIB, EIB g. Performance Ratings: February 2001 thru January 2002, Among the Best February 2002 thru January 2003, Among the Best h. Disciplinary Action(s) / Evidentiary Record: CID Report, dated 26 August 2003, indicates the applicant was the subject of an investigation for larceny of government munitions. Special Court-Martial Order Number 11, dated 5 April 2004, described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 September 2017, with cover letter listing attachments and self-authored statement; //__ character reference/supporting statements; Awards/Commendations Table of Contents with listed documents; Training Table of Contents with listed documents; Evaluations/Promotions Table of Contents with listed documents; Chapter 10 Discharge Request Table of Contents with listed documents; Post-Service Documentation Table of Contents with listed documents (page 125); Maui Police Department Table of Contents with listed documents (page 5 of Supporting Docs-1); OMPF Table of Contents with listed documents (page 97); and two photocopy of pictures. Additional Evidence: Applicant's self-authored letter, dated 28 July 2018, with its attachments, and Police Department Administrative Order, dated 28 August 2018. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, his Maui Police Department records show he had eight years of post-service career as a law enforcement officer and narcotics investigator, and his continued service to his community include being a high school sports coach, Nature Conservancy guide, and scheduled rotations at Molokai General Hospital. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 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 to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. The applicant's available record of service, and 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. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. 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. Although his record documents acts of significant achievements or valor, they did not support the issuance of an honorable or a general discharge by the separation authority. The applicant contends the discharge was unjust because there was coercive and hostile atmosphere surrounding the investigation of the incident which led to his discharge, the arbitrary and capricious actions and advisement of his leadership, and inadequate legal counsel. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, and his numerous post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 applicant contends the incident that caused his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that an upgrade of his discharge would provide him veterans' benefits, such as healthcare. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Further, the Board does not grant a relief for the purpose of obtaining veterans' benefits. The applicant contends although he had not been diagnosed or claim having PTSD, but the stress and its effects from his previous combat deployment that included the death of a close friend have affected his prioritizations and decision making. However, the service record does not support the applicant's contention, and no evidence to support it has been submitted by the applicant to corroborate the discharge was the result of any medical condition. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., a behavioral health diagnosis by a medical authority) for the Board's consideration because they are not available in the official record. The third party statements provided with the application speak highly of the applicant's performance and character, with continued recognition of his good conduct after leaving the Army; 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. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 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 17 April 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 AR20170018870 1