1. Applicant's Name: a. Application Date: 17 February 2018 b. Date Received: 5 March 2018 c. Previous Records Review: AR20170001648, 31 January 2018 (Reconsideration based on documentary evidence of PTSD) d. 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) or honorable. The applicant seeks relief contending, in pertinent part and in effect, the Department of Veterans Affairs has determined the service to be honorable. 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 active duty records available due to the period of service. The applicant is 70% service-connected for PTSD from the VA. The VA has diagnosed the applicant with PTSD, Major Depressive Disorder, and Alcohol Abuse. In summary, the applicant had 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 9 August 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and OBH). 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: 5 December 2013 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 24 September 2013, the following charge was preferred, with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge: Charge: Violation of Article 85, UCMJ, for absenting himself permanently on 2 August 2007, and remained absent in desertion until 17 September 2013. (2) Legal Consultation Date: 25 September 2013 (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: 9 October 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 February 2006 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 1 year, 8 months, 7 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (31 January 2006 to 28 May 2007) f. Awards and Decorations: NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Return of Absentee, dated 17 September 2013, indicates the applicant surrendered to military authorities on 17 September 2013. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 2,238 days (AWOL on 2 August 2007, until 16 September 2013) / applicant surrendered to military authorities on 17 September 2013 j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: VA Rating Decision, dated 8 June 2018, indicates the applicant was granted an evaluation of 70 percent service-connected post-traumatic stress disorder with major depressive disorder, effective 14 February 2018. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 17 February 2018, and VA letter, dated 26 January 2018. Additional evidence: VA Rating Decision, dated 8 June 2018, and previous ADRB records review Case Report and Directive under AR20170001648. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 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. 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 his under other than honorable conditions discharge to general (under honorable conditions) or honorable. 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 veteran's 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. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends the Veterans Affairs (VA) has determined his service to be honorable. 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. Furthermore, VA considered the applicant's period of service from 14 February 2006, through 5 December 2013, to be Honorable for VA purposes and was not a statutory bar to VA benefits based on weighing the factors determined as compelling circumstances surrounding his service and decision to become AWOL. (Emphasis added) The applicant's documentary evidence shows 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 in his previous application. If the Board determines the applicant's behavioral health issues, based on his documentary evidence, 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 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 9 August 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and OBH). 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 AR20180006550 5