1. Applicant's Name: a. Application Date: 13 November 2017 b. Date Received: 4 December 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, was a great Soldier and had no incident, which required legal disciplinary actions, until the incident that led to discharge. Upon redeployment from Afghanistan, the applicant noticed feeling out of place and always on edge, angry and frequently spacing out. The applicant spoke to a squad leader about what the applicant was experiencing, who suggested that the applicant go to mental health. In 2011, the applicant went to mental health and explained what was going on. The applicant's wife at the time, had expressed concerns about the applicant to the mental health professionals. The applicant then received an appointment to return to mental health 30 days later, which confused the applicant because the applicant needed help right away. The applicant continued to push on and tried to move forward, but in July 2008, blacked out and almost killed the wife. The applicant believes the incident could have been prevented had the applicant received the proper help sooner as the applicant desperately needed. This incident destroyed the family and career in the Army and now carries that burden every day. Since discharge, the applicant has earned a college degree in Business Administration, rebuilt the relationship with the applicant's children, and has remarried. The applicant received the necessary help, life may have turned out much differently. 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 depressed mood, Alcohol Dependence, Other Specified Family Circumstances, and Phase of Life Circumstance Problem. The VA has diagnosed the applicant with Unspecified Trauma and Stressor Related Disorder, and Alcohol Dependence. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 6 September 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: 14 November 2012 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 3 April 2012, the applicant was charged with: Charge I: Violation of the UCMJ, Article 120. The Specification: The applicant, did, at or near Fort Drum, New York, on or about 28 July 2011, take indecent liberties in the physical presence of Miss X, a child under 16 years of age, by telling Mrs. X to "sit down cunt," or words to that effect, with the intent to abuse, humiliate or degrade the said Mrs.X. Charge II: Violation of the UCMJ, Article 128. Specification 1: The applicant, did, at or near Fort Drum, New York, on or about 28 July 2011, unlawfully grab Mrs. X elbows and shove her into a table and computer stored in the garage. Specification 2: The applicant, did, at or near Fort Drum, New York, on or about 28 July 2011, unlawfully grab Mrs. X's wrist with his hand, and twist her arm. Specification 3: The applicant, did, at or near Fort Drum, New York, on or about 28 July 2011, commit an assault upon Mrs. X by choking her neck with his arms with a force likely to produce death or grievous bodily harm. Charge Ill: Violation of the UCMJ, Article 134. Specification 1: The applicant, did, at or near Fort Drum, New York, on or about 28 July 2011, with intent to commit murder, commit an assault upon Mrs. X by choking her with his arms, such conduct prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. Specification 2: The applicant, did, at or near Fort Drum, New York, on or about 28 July 2011, wrongfully communicate to Mrs. X a threat to kill her, such conduct prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 4 September 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: 25 October 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 October 2010 / 4 years b. Age at Enlistment / Education / GT Score: 32 / GED / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, Petroleum Supply Specialist / 6 years, 8 months, 6 days d. Prior Service / Characterizations: ARNG, 21 August 2000 - 31 March 2003 / GD RA, 8 September 2000 - 10 January 2002 / HD (Concurrent Service) USAR, 31 March 2003 - 13 October 2008 / NIF RA, 14 October 2008 - 21 October 2010 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Afghanistan (14 March 2010 - 27 February 2011) f. Awards and Decorations: ACM-CS, MUC, AGCM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA 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: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two letters of support. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has earned his Associate's Degree and rebuilt his relationships with his family. 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. 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. 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 at the time of discharge. The applicant contends that his mental health was not well after he returned from Afghanistan. However, the service record contains no evidence of mental health disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends had he received the proper care when he reported it to mental health professionals, the incident which led to his discharge could have been avoided. However, 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 applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. 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 6 September 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 AR20180000620 1