1. Applicant's Name: a. Application Date: 14 May 2018 b. Date Received: 29 May 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, his discharge was inequitable not only because it was based upon minor charges exacerbated by a failure of leadership but also obtained under duress of confinement for prolonged period while recovering from surgery. Given the nature of the allegations and failure of leadership a discharge under other than honorable condition was grossly inequitable. During his time in service he earned several awards and decorations. AR 635-200, specifically states that adequate counseling and rehabilitative measures are to be taken before initiating separation proceedings under Chapter 14. His command either ignored or disregarded these requests for reassignment, which should have been granted at least once but the leadership never saw fit to reassign him and instead decided to administer an Article 15. His discharge was racially motivated. 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), the applicant submitted a psychologist letter indicating he received treatment for a few months between 2016 and 2017 with diagnoses of PTSD and MDD; however, the trauma is void. The applicant is not service-connected from the VA. The applicant did assert a combat related PTSD diagnosis to the VA, but did not attend the follow up behavioral health appointment for clarification. Records are void of a MST or IPV. If the Board accepts PTSD was combat related, which is more likely than not considering two years of service without misconduct and misconduct after deployment, the basis for separation would be mitigated by PTSD. In a telephonic personal appearance hearing conducted at Arlington, VA on 11 January 2021, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. diagnosis of OBH and), and post-service accomplishments. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 12 February 2004 c. Separation Facts: Yes (1) Date Charges Were Preferred: 2 December 2003 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 9 December 2003, the applicant was charged with, without authority, fail to go at the time prescribed to his appointed place of duty x8 (5 November 2003, 30 October 2003, 21 October 2003, 20 October 2003, 8 October 2003, 7 October 2003, 6 October 2003, and 5 October 2003); disrespectful in deportment toward 1SG T.C.P., a noncommissioned officer, who was then in execution of his office, by winking at him and continuing to talk while being talked to (28 October 2003); disrespectful in language and deportment toward SSG R.L.E., a noncommissioned officer, who was then in the execution of his office, by saying "bullshit," or words to that effect, and coughing deliberately during formation (5 November 2003); and disrespectful in language toward SSG R.L.E., a noncommissioned officer, who was then in execution of his office, by calling him a "pussy," or words to that effect (5 November 2003). (3) Recommended Characterization: NIF, government regularity is presumed in the discharge process. (4) Legal Consultation Date: 20 January 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: 21 January 2004 / / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 June 2001 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-4 / 62B10, Construction Equipment Repairer / 2 years, 7 months, 22 days d. Prior Service / Characterizations: Non e. Overseas Service / Combat Service: SWA / Iraqi Freedom, 3 February 2003 to 8 July 2003 f. Awards and Decorations: NDSM, GWOTEM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 25 September 2003, for having received a lawful order from SGT J.P., a noncommissioned officer, to get to the position of attention, an order which it was his duty to obey, did willfully disobey (19 August 2003); and did treat with contempt SGT J.P., a noncommissioned officer, who was then in the execution of his office, by stepping out of rank and talking back (19 August 2003); reduction to PVT / E-1, extra duty and restriction for 14 days. The applicant received several negative counseling statements for various acts of misconduct; and being flagged. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief (ten pages); Exhibit A, Certificate of Naturalization I Petition for Name Change; Exhibit B, DD Form 214; Exhibit C, Individual Event History; Exhibit D, Beauregard Parish Records; Exhibit E, Article 15; Exhibit F, Unsigned Article 15 / Counseling Form; Exhibits G, H, I, Counselling Forms; Exhibit J, Counseling Forms / Sworn Statements of SSG E. and 1LT F.; Exhibit K, Pre-Deployment Health Assessment / Post Deployment Health Assessment; Exhibit L, Medical Records; Exhibit M, Charge Sheet; Exhibit N, Defense Notice of Motions, Pleas and Forum; Exhibit O, Email from COL L. to CPT F.; Exhibit P, Letter from Dr. E.M.; Exhibits Q and R, Support Statements, US Army Sergeant Retired K.A. and US Army Sergeant A.S.; Exhibit S, letter, Department of the Army; Exhibit T, Modular Format Police Training Program Certificates; Exhibit U; Who's Who and Student Activities Award; Exhibit V, M., S., E., and K., P.C., Veterans Scholarship Awards; and Exhibit W, General Awards. 6. POST SERVICE ACCOMPLISHMENTS: The applicant through counsel states he completed the Level II and Level III Modular Format Police Training Program at the El Camino College Police Academy. He graduated from Nassau County Community College in 2016 with an Associate's Degree in Media Communication. During his time at Nassau County Community College he not only excelled academically; he served as the Co-President of Nassau Community College Chapter of the Student Veterans of America where he completed various community service projects. Also, he received the Who's Who and Student Activities Award. He was accepted into Brooklyn College where he plans to pursue a Bachelor's Degree in Film. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from under other than honorable conditions to 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 under other than 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 or a general discharge 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 inequitable not only because it was based upon minor charges exacerbated by a failure of leadership but also obtained under duress of confinement for a prolonged period while recovering from surgery. 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 applicant further contends, given the nature of the allegations and failure of leadership a discharge under other than honorable condition was grossly inequitable. Army Regulation 635- 200, provides that an under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant also contends, during his time in service he earned several awards and decorations. 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 additionally contends, AR 635-200, specifically states that adequate counseling and rehabilitative measures are to be taken before initiating separation proceedings under Chapter 14. The record of evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. Furthermore, the applicant contends, his command either ignored or disregarded these requests for reassignment, which should have been granted at least once but the leadership never saw fit to reassign him and instead decided to administer an Article 15. AR 635-200, Chapter 10-4 paragraphs b and c state, consideration should be given to the Soldier's potential for rehabilitation, and his entire record should be reviewed before taking action per this chapter. Use of this discharge authority is encouraged when the commander determines that the offense is sufficiently serious to warrant separation from the Service and that the Soldier has no rehabilitation potential. Lastly, the applicant contends, his discharge was racially motivated. Although the applicant alleges that he was a victim of racism during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): Counsel: 10. BOARD DETERMINATION: In a telephonic personal appearance hearing conducted at Arlington, VA on 11 January 2021, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, the circumstances surrounding the discharge (i.e. diagnosis of OBH and), and post-service accomplishments. 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. 11. 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 AR20180008298 1