1. Applicant's Name: a. Application Date: 11 August 2018 b. Date Received: 17 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, served honorably for over 11 years, but in one instant, was demoted to a Private. Although the military judge wanted to dismiss the court-martial, the post commander disregarded the judge's opinion and the charges against the applicant were processed. 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 following diagnoses: Adjustment Disorder. Post-service, the VA has diagnosed the applicant with PTSD and is 70% service- connected. In summary, the applicant did not have a mitigating behavioral health diagnoses for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 9 January 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 / General (Under Honorable Conditions) b. Date of Discharge: 28 August 2015 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF; however, pursuant to Special Court-Martial Order Number 7, dated 20 October 2015, the applicant was found guilty of the following charges on 22 June 2015: Charge I: Three specifications of violating Article 128, UCMJ: Specification 1: he unlawfully shoved PVT X on the back with his hand on 2 December 2014. Specification 2: he unlawfully strike PFC X in the head with his hand on divers occasions between 9 August 2014 and 2 December 2014. Specification 3: he unlawfully strike PVT X in the head with his hand on 2 December 2014. Additional Charge: Two specifications of violating Article 93, UCMJ: Specification 1: he maltreated PFC X., a person subject to his orders, by wrongfully striking him and calling him derogatory terms between 1 September 2013 and 2 December 2014. Specification 2: he maltreated PVT X, a person subject to his orders, by wrongfully striking him and calling him derogatory terms between 9 August 2014 and 2 December 2014. (2) Sentence Adjudged: To be reprimanded (3) Disposition of SPCM findings and sentence: On 20 October 2015, the GCMCA disapproved the findings of guilty and the adjudged sentence, and dismissed the charges and its specifications. (4) Legal Consultation Date: NIF (5) 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 (6) Separation Decision Date / Characterization: 12 August 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2012 / 5 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 12B30, Combat Engineer / 11 years, 5 months, 11 days d. Prior Service / Characterizations: RA (18 March 2004 to 10 January 2007) / HD RA (11 January 2007 to 29 July 2008) / HD RA (30 July 2008 to 15 June 2009) / HD RA (16 June 2009 to 1 March 2012) / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (5 March 2005 to 23 February 2006), (1 September 2008 to 1 September 2009), Afghanistan (21 May 2011 to 10 May 2012) f. Awards and Decorations: ARCOM-4; AAM-2; AGCM-2; NDSM; ACM-2CS; ICM-CS-2; GWOTSM; ASR; OSR-3; NATO MDL g. Performance Ratings: Four NCOERs rendered during period of service under current review: 29 October 2011 thru 19 September 2012, Among the Best 14 September 2012 thru 13 September 2013, Among the Best 27 September 2013 thru 24 June 2014, Among the Best 25 June 2014 thru 24 June 2015, Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 7, dated 20 October 2015, is described at the preceding paragraphs 3c(1)-(3) i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: VA Rating Decision letter, dated 7 March 2016, reflects that the applicant was assigned a 70 percent disability for post-traumatic stress disorder (PTSD) with alcohol use disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 August 2018; DD Form 214; VA Rating Decision letter, dated 7 March 2016; VA letter, dated 23 March 2016; medical records; six NCOERs; two certificates of achievement; two AAM certificates with recommendations; four ARCOM recommendations; three ARCOM certificates; ten character reference/support statements; and special court-martial trial transcript. 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 general (under 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 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 veterans' 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 was normal and appropriate under the regulatory guidance; however, hrecord documenting acts of significant achievement or valor supported the issuance of a general (under honorable conditions) discharge by the separation authority. 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's contentions regarding his behavioral health issues which led to the incidents of misconduct, 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 contends the discharge was unjust because although the military judge wanted to dismiss his court-martial charges, the post commander disregarded the judge's opinion and the charges against him were processed. 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 and to change the narrative reason for his discharge. Further, Special Court- Martial Order Number 7, dated 20 October 2015, indicates that the GCMCA disapproved the court-martial findings of guilty and the adjudged sentence, and dismissed the charges and its specifications, with an indication that the applicant's request for be separated in lieu of trial by court-martial was approved. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, 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. A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant's command. 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 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 January 2019 and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. 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 AR20180013152 1