1. Applicant's Name: a. Application Date: 17 July 2018 b. Date Received: 23 July 2018 c. Previous Records Review: 9 May 2018, AR160010245 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: In a separate correspondence (congressional letter), dated 4 March 2019, the applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions) or honorable. In a counsel-authored letter, dated 17 June 2019, the counsel on behalf of the applicant made additional requests, specifically, for an upgrade to honorable and to change the narrative reason for the applicant's discharge with its corresponding codes. In an initial counsel-authored letter, the counsel on behalf of the applicant seeking relief, contends in pertinent part and in effect, that it is important that the applicant, who is a 100 percent service-connected disabled and whose misconduct entirely post-dates an OEF deployment, receive the most careful review of application according to federal law and the Department of Defense memoranda. In addition, the counsel on behalf of the applicant requests to correct the error and an injustice presented in the official military personnel file because it does not contain a copy of the 2013 reenlistment contract; thereby, representing an error and injustice. Its absence has led the VA to wrongfully deny the applicant access to educational benefits. The applicant petitions the Board to correct the error and injustice by recreating, reconstituting, or documenting the 2013 reenlistment contract. 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 anxiety and depressed mood/with anxious mood/with disturbance of emotions and conduct, mild TBI, Depression, Intermittent Explosive Disorder, Marital Problem, Stress and Adjustment Reaction. The applicant is 100% service-connected for PTSD from the VA. In summary, although the applicant has a BH diagnosis, it is not mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 15 July 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: 12 September 2014 c. Separation Facts: (1) In Lieu of DD Form 458 (Charge Sheet) NIF: General Court-Martial Order Number 19, dated 19 November 2014, promulgates the arraignment of the applicant to the following charges: Charge I: seven specifications of violating Article 128, UCMJ: Specification 1: Between 1 September 2013, and 30 September 2013, the applicant unlawfully grabbed Mrs. X. by the arm and dragged her toward the bathroom. Specification 2: Between 1 November 2013 and 30 November 2013, the applicant unlawfully grabbed Mrs. X. by the shoulders, shook her, pinned her to a couch, and punched her in the head with his fist. Specification 3: Between 1 February 2014 and 28 February 2014, the applicant unlawfully grabbed Mrs. X, by the head and pressed his thumbs against her eyes. Specification 4: On 21 April 2014, the applicant unlawfully struck Mrs. X., in the side of the face with his arm, grabbed the back of her neck with his hand, and pulled her towards him. Specifications 5, 6, and 7, respectively: On three separate occasions on 15 May 2014, the applicant unlawfully grabbed Mrs. X, by the shoulders and shook her, grabbed her by the back of the neck, and pushed her face into a door; he unlawfully grabbed Mrs. X. by striking her with his hand with a means likely to produce death or grievous bodily harm, to wit: striking her in the throat; and he unlawfully shoved Mrs. X. down into a mattress with his hands. Charge II: six specifications of violating Article 134, UCMJ, and said conduct on six separate occasions were to the prejudice of good order and discipline in the armed forces and were of nature to bring discredit upon the armed forces: Specifications 1, 3, 5, and 6, respectively, the applicant wrongfully communicated threats to Mrs. X.: between 1 September 2013 and 30 September 2013, by threatening to kill her by putting her in a bathtub with a toaster; between 1 February 2014 and 28 February 2014, by threatening to injure her by hitting her in the head with a hammer; between 1 February 2014 and 15 May 2014, by threatening to kill her if she ever left him; and on 15 May 2014, by threatening to injure her by shoving a broom handle to her vulva and anus. Charge III: three specifications of violating of Article 90, UCMJ: Specifications 1, 2, and 3, respectively, on three separate occasions, the applicant having received lawful commands to not contact Mrs. X., "'either directly or through a third party,'" on 17 May 2014, 21 May 2014, and 20 May 2014, willfully disobeyed CPT X (2) Legal Consultation Date: NIF (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: 2 September 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 March 2013 / NIF, but for a period of six years according to an ETS date of 4 March 2019 in the ERB, dated 15 September 2014, and DD Form 214 showing that he was paid a selective reenlistment bonus: $4,300, 18 March 2013 b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 6 months, 6 days d. Prior Service / Characterizations: RA (7 March 2011 to 4 March 2013) / HD e. Overseas Service / Combat Service: SWA, Hawaii / Afghanistan (18 December 2012 to 23 August 2013) f. Awards and Decorations: ARCOM; AAM; AGCM; NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order Number 8, dated 21 September 2017, , which promulgates the charges described at the preceding paragraph 3c(1), and the final action by the GCMCA, who terminated the court-martial proceedings on 2 September 2014, and approved the applicant's request for discharge pursuant to Chapter 10, AR 635-200. The charges and their specifications were dismissed. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: VA letter, dated 9 January 2017, and VA Rating Decision, dated 4 January 2017, indicate the applicant was assigned 100 percent of PTSD with TBI, "claimed as major depressive d/o, intermittent explosive d/o, adjustment d/o w/mixed disturbance of emotions and conduct, impulse control d/o h/o PTSD, short term memory loss, lack of concentration." Licensed Psychologist statement, dated 27 June 2019, states, in pertinent part, that while the applicant received mental health diagnoses in service, which includes Adjustment Disorder, Intermittent Explosive Disorder, and Borderline Personality Disorder. However, those diagnoses were assigned in a way that were not in line with the diagnostic criteria set forth in the DSM, because the existence of trauma was ignored or failed to explain his full range of symptoms. Mental health professionals at the Department of Veterans Affairs and Home Base Program have diagnosed the applicant with Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD), and Traumatic Brain Injury (TBI) related to his military service. It was the psychologist's professional opinion that the applicant met the criteria for Post-Traumatic Stress Disorder during his service, from May 2013 through his September 2014 discharge, and to the present day. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 19 July 2018, with counsel-authored petition; Affidavit of A.J.D.; DD Form 214; enlistment documents; OMPF documents; separation file (two decision memoranda); three VA letters, dated 14 October 2016, 20 March 2018, and 9 January 2017; and NPRC letter, dated 13 September 2017. Additional evidence: congressional letter, dated 4 March 2019; VA letter, dated 9 January 2017; and VA Rating Decision, dated 4 January 2017. Further additional evidence: Legal Services Center of Harvard Law School letter, dated 17 June 2019, with memorandum in support of application; Confinement Order; letter (Ms. M.M.), dated 27 August 2014; and Licensed Psychologist statement with its attachment, dated 27 June 2019. 6. POST SERVICE ACCOMPLISHMENTS: The counsel, on behalf of the applicant, states in effect, that since the applicant's discharge, the applicant became a valuable member of his community and he is fully engaged in his mental health treatment for PTSD and TBI; thereby, demonstrating the in-service misconduct as an aberration. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, 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 counsel, on behalf of the applicant, requests an upgrade of the applicant's under other than honorable conditions discharge to honorable and to change the narrative reason for the applicant's discharge with its corresponding codes . 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. Although the applicant's request is not in file, but a promulgating order showing his arraignment on charges, indicates that he would have 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 would have admitted guilt to the offense, or a lesser included offense, and that 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. The available record shows 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 several acts of significant achievement; however, it appears they did not support the issuance of an honorable or a general (under honorable conditions) discharge by the separation authority at the time of discharge. The applicant's contentions that he is 100 percent service-connected disabled and his misconduct entirely post-dates his OEF deployment, 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 indirectly 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. In consideration of the applicant's service accomplishments and quality of his service prior to the 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 applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. 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. The applicant requests to change the reentry code to "1." However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The applicant's record also shows he received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification for reenlistment, thus the applicant is no longer eligible for reenlistment. The third party statement provided with the application speaks on behalf of the applicant against prosecution. However, the person providing the statement was not in a position to fully understand or appreciate the expectations of the applicant's chain of command. The applicant contends that the absence of his 2013 reenlistment documentation, and the error and injustice in his record should be corrected by recreating, reconstituting, or documenting the 2013 reenlistment contract. However, the applicant's requested change to the DD Form 214 or the creation of his missing reenlistment documents do not fall within the purview of this Board. Therefore, it will be referred to the Army Board for Correction of Military Records (ABCMR) for their adjudication. 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. 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): VA Letter - 1 Page Character Letter - 2 Pages Article - 18 Pages b. The applicant presented the following additional contention(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 15 July 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20180010024 7