1. Applicant's Name: a. Application Date: 26 August 2018 b. Date Received: 1 March 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) or honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, his discharge was improper because separation procedures were not followed because he was not told he had the right to consult with counsel, the right to make statements on his behalf, the right to review documents supporting the charge and the right to refrain from making incriminating statements. His discharge was improper because the separation authority did not determine whether there was sufficient evidence to support his separation. His separation was inequitable because during the events in question he suffered from PTSD due to a physical attack on him by other Soldiers. His PTSD caused him to behave uncharacteristically including self-medicating to deal with depression, nightmares and departing from his otherwise stellar performance a Soldier. The VA diagnosed him with service connected PTSD, and under the 2014 Hagel Memorandum and 2017 DoD Clarifying Guidance Memorandum, his application must be given liberal consideration due to this diagnosis. 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 information regarding the applicant as it was not in use during applicant's period of service. The VA has also diagnosed the applicant with PTSD. The applicant is 70% service connected for PTSD. In summary, the applicant has 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 2 December 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, the circumstances surrounding the discharge (service-connected PTSD diagnosis), and prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (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 / General (Under Honorable Conditions) b. Date of Discharge: 20 March 2004 c. Separation Facts: Yes (1) Date Charges Were Preferred: 12 February 2004 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 20 February 2004, the applicant was charged with wrongful use of marijuana (25 December 2003). (3) Recommended Characterization: The applicant's chain of command recommended a General (Under Honorable Conditions) discharge. (4) Legal Consultation Date: 20 February 2004, the applicant consulted with legal counsel and requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 March 2004 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 February 2001 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 3 years, 1 month, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea f. Awards and Decorations: AAM, NDSM, KDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant through counsel provided a CID Report of Investigation, dated 11 May 2004, that relates he was the subject of an investigation for wrongful possession and wrongful use of marijuana. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA Rating Decision, dated 22 February 2020, relates his evaluation of PTSD, which was 50 percent disabling, increased to 70 percent disabling, effective 14 February 2020. VA benefits letter, dated 26 February 202, revealed the applicant received and evaluation of PTSD, which was 50 percent disabling, is increased to 70 percent disabling, effective 14 February 2020. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); applicant attorney's notification letter to the Army Discharge Review Board; attorney's brief (11 pages); Exhibit A, applicant personal statement (three pages); Exhibit B, DD Form 214; Exhibit C, Enlisted Record Brief; Exhibits D, E F, J, K, L, character / support statements; Exhibit G, screening note of acute medical care (two pages); Exhibit H, charge sheet (two pages); Exhibit I, applicant's resume; Exhibit M, VA treatment Form; Exhibit N, VA Disability Compensation Form; Exhibit O, letter from S.P., VA Vocational Rehabilitation Counselor; Exhibit P, email, reference Tentative Offer of Employment with the Social Security Administration; Exhibit Q, Army Regulation 635-200, revision and excerpts; Exhibit R, Request for Discharge in Lieu of Trial by Court-Martial; Exhibit S, company commander recommendation, Exhibits T, U, battalion and brigade commanders recommendations; Exhibit V, separation authority's documentation; Exhibit W, CID Report of Investigation; Exhibit X, Department of Defense Memorandum, Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military / Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment; Exhibit Y, Department. of Defense Memorandum, Supplemental Guidance to Military Boards for Correction of Military / Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder; and Exhibit Z, Report of Medical Examination. Exhibits A through Z are listed as annotated in the exhibits list. Additional documents, VA benefits letter (seven pages); and a VA Rating Decision (three pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant through counsel in his application that since his discharge and despite suffering from PTSD, he committed to bettering himself and others by seeking help from the VA to treat his PTSD, obtaining an Associate's Degree, working in the security services industry and other industries to support he and his daughter, applying and being accepted to VA Vocational Rehabilitation Program. He is employed by the Social Security Administration where he assists the public. 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. 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 an upgrade of the characterization of service from general (under honorable conditions) or honorable and a change to the narrative reason for separation. 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 general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no significant acts of achievement or valor and did not support the issuance of an honorable by the separation authority at the time of separation. The applicant requests a change to the narrative reason for separation. 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 regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending, his discharge was improper because separation procedures were not followed because he was not told he had the right to consult with counsel, the right to make statements on his behalf, the right to review documents supporting the charge and the right to refrain from making incriminating statements. On 20 February 2004, the applicant voluntarily requested discharge in lieu of trial by court-martial under provisions of AR 635-200, Chapter 10. He was advised that he could submit any statements he desired in his own behalf, or statements made by his attorney on his behalf, which would accompany his request for discharge. The applicant further contends, his discharge was improper because the separation authority did not determine whether there was sufficient evidence to support his separation. 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 this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. The applicant additionally contends, his PTSD caused him to behave uncharacteristically including self-medicating to deal with depression, nightmares and departing from his otherwise stellar performance a Soldier. The applicant 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 record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Community Counseling Center and other medical resources available to all Soldiers. Lastly, the applicant contends, the VA diagnosed him with service connected PTSD, and under the 2014 Hagel Memorandum and 2017 DoD Clarifying Guidance Memorandum, his application must be given liberal consideration due to this diagnosis. The applicant provided two VA documents that show he received an evaluation of 50 percent disabling for PTSD, which was increased to 70 percent, effective 14 February 2020. 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 2 December 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, the circumstances surrounding the discharge (service- connected PTSD diagnosis), and prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / RE-3 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 AR20180004251 1