1. Applicant's Name: a. Application Date: 11 July 2018 b. Date Received: 10 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of discharge from under other than honorable conditions to general (under honorable conditions) and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, was AWOL from 12 June 2009, until 16 December 2016, after being taken into custody by civil authorities and returned to the military control at Fort Sill to be processed out. The applicant's DD Form 214 is incorrect-it states, the applicant only served five months and 26 days. The applicant was honorably discharged from the US Marine Corps for service from 2000 to 2004 and has a service-connected disability from injuries received during that enlistment. The applicant did not receive any pay from the Army since April 2009. The VA disability compensation received since 2013 has been taken by the Department of the Army to repay the amount the Army believes the applicant received from 2009 to 2017. However, the applicant never received any compensation during that period. The disability checks for May, June, and July 2018, sent to the Army needs to be refunded. 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 the applicant did not have any BH diagnosis while on active duty. VA records indicate that the applicant is 60% service- connected. VA records indicate the applicant has been diagnosed with PTSD from the time in the Marines. In summary, and in accordance with Liberal Guidance, the applicant had a BH diagnosis that was mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 25 January 2019, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's combat service and the circumstances surrounding the discharge (i.e. in-service and post- service diagnoses of PTSD and OBH), 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 uncharacterized. 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: 6 February 2017 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF (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: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 December 2008 / 3 years, 29 weeks b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 93 c. Highest Grade Achieved / MOS / Total Service: E-2 / None / 5 months, 26 days d. Prior Service / Characterizations: USMC (period of service NIF) / NIF e. Overseas Service / Combat Service: None / None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three DA Forms 4187 (Personnel Actions) report the following duty status changes: Dated 23 April 2009, from PDY to AWOL, effective 23 April 2009 Dated 23 May 2009, from AWOL to DFR, effective 23 May 2009 Dated 28 December 2016, from DFR to PDY, effective 17 December 2016 i. Lost Time / Mode of Return: 2,795 days (AWOL from 23 April 2009, until 16 December 2016) / The applicant was apprehended by civil authorities. j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: Report of Mental Status Evaluation, dated 13 April 2009, reflects a diagnosis of "Bipolar II" and that he was psychiatrically cleared for any administrative action deemed appropriate by his command. The report also indicated a medical condition that "Existed Prior to Service (EPTS) Medical Evaluation Board had been initiated due to the applicant's past history of Bipolar Disorder and previous psychiatric hospitalization," and that he should be separated from the Army according to AR 635-200, paragraph 5-11, for "Failed Medical/Physical/Procurement Standards." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 18 July 2018; DD Form 214; VA letter, dated 10 April 2018; Report of Mental Status Evaluation, dated 13 April 2009; Memorandum for Record, dated 23 December 2016; VA letter, dated 19 December 2016; and VA Debt Management Center letter, dated 18 February 2018. 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 the characterization of his discharge from under other than honorable conditions to general (under honorable conditions) 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 record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain 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 AR 635-200, Chapter 10, by reason of an approved request for discharge "In Lieu of Trial by Court-Martial," with a characterization of service of under other than honorable conditions. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. There is also insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted and to change the narrative reason for his discharge. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further sufficient evidence in support of this request for an upgrade of the discharge and to change the narrative reason for his discharge. 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 complete discharge packet) 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 applicant contends his DD Form 214 is incorrect; in that it states he served five months and 26 days. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends his discharge should be upgraded and to change the narrative reason for his discharge because he did not receive any pay from the Army since April 2009, and the VA disability compensation he received since 2013 was taken by the Department of the Army to repay the amount the Army believes he received from 2009 to 2017, but, he never received any compensation during that period. However, the issues the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The Department of the Army and the Department of Veterans Affairs (VA) are separate entities. The correspondence he provided regarding compensations, were received from the VA, and not the US Army. Further, the VA compensations he is relating to is within the purview of the Department of Veterans' Affairs, and inapplicable to the period he served in the US Army. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. Insofar as the applicant requesting 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. Although the applicant did not raise any behavioral health issues, a careful review of the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed. However, his documentary evidence further indicates that this medical condition determined to have "Existed Prior to Service (EPTS)," had been initiated for disposition under the Medical Evaluation Board due to the applicant's "past history of Bipolar Disorder and previous psychiatric hospitalization," and that he should be separated from the Army according to AR 635-200, paragraph 5-11, for "Failed Medical/Physical/Procurement Standards." 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 25 January 2019, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's combat service and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD and OBH), 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 uncharacterized. 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: Uncharacterized 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 AR20180011751 1