1. Applicant's Name: a. Application Date: 2 February 2018 b. Date Received: 26 March 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to honorable and to change the narrative reason for discharge. The counsel, on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant is a decorated and hardworking combat veteran, whose request for relief is based on a diagnosed service-connected PTSD (two separate civilian medical providers have diagnosed the applicant with PTSD since discharge), and improprieties and inequities of discharge. The applicant's service was overall meritorious. The applicant's discharge, in lieu of trial by court-martial, relied on a purported request for wrongful use of a controlled substance that stemmed from a command investigation of an alleged hashish ring in Afghanistan; however, the applicant never tested positive for the alleged use of drugs and the investigation found no drugs in the applicant's belongings-the applicant's admission to using drugs daily was "simply not true." An NCO, who hazed the applicant nonstop, coerced a confession to the military police during the time the applicant was suffering from PTSD. The deployment subjected the applicant to a host of stressors. (The counsel detailed the events and circumstances surrounding the applicant's enlistment, a pre-deployment positive urinalysis, deployment and combat experiences, being a target of a hostile NCO, combat stressors and family issues leading to suicidal ideation and sleeping issues or Post-Traumatic Insomnia (PTI), the subsequent charge(s) of which a charge sheet was never revealed, and the applicant enduring a hostile command in Afghanistan.) The applicant's only drug use was the one-time marijuana use during pre-deployment-it is insufficient offense to justify the UOTH. The "procedural improprieties and errors of discretion experienced arose from lack of evidence supporting the basis for his discharge." The First Sergeant coerced the applicant to confess without advising of a right to counsel or waiver of counsel as evidenced by the MP report. The applicant informed the defense counsel of accepting a UOTH "for fear of being a target if he fought the charges and remained in his unit." When collectively viewed, the "command's conduct was arbitrary and capricious rendering [his] discharge inequitable under the circumstances." Therefore, the DD Form 214 should reflect an honorable discharge and a medical separation. Since the discharge, and after five years, despite behavioral health issues, the applicant volunteers with assisting veterans and others in need. The applicant serves as the Social Media Director of a bipartisan group of veterans seeking to improve veterans' rights nationwide. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the applicant had a medical or behavioral health condition that was partially mitigating for the offenses which led to separation from the Army. The applicant's electronic military medical records revealed diagnoses of an Occupational Problem and Post- Traumatic Insomnia. From October 2010 - February 2011, the applicant was seen by behavioral health about once per month for issues with anger, emotion regulation, and home front stress. Post-service, a psychiatric evaluation, indicated the SM was diagnosed with PTSD. The SM does not have a service connected percentage rating and has not been seen by the VA. In summary, the SM has a history of behavioral health conditions that is partially mitigating for the misconduct that led to separation. In a records review conducted at Arlington, VA on 10 August 2018, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of OBH and PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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: 8 April 2011 c. Separation Facts: NIF, except for decision memoranda. (1) DD Form 458 (Charge Sheet): NIF; a charge sheet with preferable of charge(s) would have been initiated with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge or a general court-martial (referral NIF). (2) Legal Consultation Date: 16 February 2011 (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 February 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 April 2009 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 1 day d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (26 April 2010 to 21 March 2011) f. Awards and Decorations: NDSM; ACM-CS; GOWTSM; ASR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Discharge Orders i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: Psychiatric Evaluation, dated 13 August 2015, rendered by Dr. X., provides a detailed psychiatric evaluation and an opinion with a reasonable degree of medical certainty that the applicant suffers from PTSD, moderately severe and chronic, which was more likely than not caused by exposure to combat trauma. Health Records, dated 13 September 2010 and 19 September 2010, show the applicant was being seen for an expressed "suicidal ideation" at combat stress clinic in Afghanistan, and for post-traumatic insomnia, respectively. Behavioral health issues, PTSD diagnoses are noted in the additional health records he provided with his application. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 2 February 2018, and attorney-authored cover letter and brief, dated 23 March 2018, with list of exhibits attached. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that since the applicant's discharge, and after five years, despite his behavioral health issues, he volunteers with assisting veterans and others in need, and he serves as the Social Media Director of a bipartisan group of veterans seeking to improve veterans' rights nationwide. 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. Paragraphs 10-8a-c (types of discharge, characterization of service), provide that a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial, but that the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment (see chapter 3, section II); 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 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 applicant's service record is void of the complete facts and circumstances of the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 10, AR 635-200, for discharge "In Lieu of Trial by Court-Martial." Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's contentions regarding his behavioral health issues, including Post-Traumatic Insomnia and subsequent diagnosis of PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant's contentions that his discharge was inequitable because of improprieties and inequities detailed in the attorney-authored brief, were carefully considered. 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 may have been unjustly discharged. Further, insofar as the record is void of the charge sheet which would provide some facts and circumstances of the events which led to the applicant's request for discharge in lieu of trial by court-martial, and 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., the discharge packet with the charge sheet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, 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 during deployment, including his behavioral health conditions. 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. In consideration of the applicant's service accomplishments and quality of his service prior to any incidents of misconduct, and his 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 requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. 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. Based on the available 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 10 August 2018, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. in-service and post- service diagnosis of OBH and PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20180006350 3