1. Applicant's Name: a. Application Date: 27 August 2018 b. Date Received: 17 October 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 general (under honorable conditions) or honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code. The applicant through counsel seeks relief contending, in effect, the applicant's knee was injured in the line of duty during land navigation training at Fort Jackson, SC, where Dr. B. diagnosed the injury, put the applicant on crutches and a limited duty profile to include no marching. Instead of being properly supervised post-injury, the applicant was maltreated and suffered from an abuse of authority by Drill Sergeant M., who harassed and bullied the applicant by throwing the crutches away in the field then forcing the applicant to march in violation of the medical profile limitations. As a direct result of Drill Sergeant M., the injury worsened into a medial tear in the posterior horn of the meniscus and suffered a fractured tibia during the forced march. The applicant should have been sent to a medical evaluation board (MEB) for that injury, or at least recycled. Drill Sergeant M. denied proper medical care and abused authority. The applicant took matters into one's own hands to get care, to put personal finances in order and removed oneself from the hostile environment. The applicant should have gone to the Command Sergeant Major or the Inspector General, but instead, went home without authority. The discharge was improper, in that it failed to comply with disability evaluation procedure and was inequitable as all Soldiers with medical concerns in the line of duty should be properly evaluated and managed, not only by health care professionals, but especially by their drill sergeants while at basic training. 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 circumstances surrounding the discharge and post-service accomplishments. 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: 10 August 2007 c. Separation Facts: Yes (1) Date Charges Were Preferred: 7 June 2007 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which shows on 7 June 2007, the applicant was charged with being AWOL (21 April 2007 until 4 June 2007). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 7 June 2007, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 July 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 February 2007 / 15 weeks / IADT b. Age at Enlistment / Education / GT Score: 37 years / GED Certificate / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 5 months, 14 days d. Prior Service / Characterizations: RA, 20 January 1987 to 30 January 1987 / UNC Break In Service ARNG, 25 January 2007 to 26 February 2007 / NA (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: AWOL for 43 days, 21 April 2007 until 3 June 2007, surrendered to military authorities. He also had 64 days of excess leave, 8 June 2007 until 10 August 2007. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); Attachment 1, Tully Rinckey, Power of Attorney; Attachment 2, DD Form 293, Attachment 3, personal statement (five pages) and several photos; Attachment 4, DD Form 214; Attachment 5, enlistment records; Attachment 6, Initial Active Duty for Training Orders; Attachment 7, Army Training Records; Attachment 8, Army Medical Records; Attachment 9, administrative separation documentation; Attachment 10, discharge orders; Attachment 11, Mr. X., character statement; Attachment 12, SFC C., letter of recommendation; Attachment 13, Basic Active Shooter Level I Certification; Attachment 14, Basic Shotgun Program Certification, Slidell Regional Police Academy; Attachment 15, American Heart Association, First Aid, CPR & AED Certification; Attachment 16, Taser Certified End User Certificate, Slidell Regional Police Academy; Attachment 17, Subject Control Spray Certification, Slidell Regional Police Academy; Attachment 18, Threat Pattern Recognition & Use of Force (Basic) Certification, Human Factors Research Group, Inc.; Attachment 19, State of Louisiana, Peace Officer Standards and Training (POST) Council, Certified Basic Peace Officer Training Course Certificate; Attachment 20; Peace Officer Basic Training Certification (375 hours), Slidell Regional Police Academy; Attachment 21, FBI Law Enforcement Executive Development Association Membership; Attachment 22, Deputy Constable Certification (Badge and Credentials), First Justice Court, Jefferson Parish, Louisiana; Attachment 23, Louisiana High School Equivalency Diploma (GED); and Attachment 24, Northwestern University Center for Public Safety, Police Motorcycle Operator Training, Certification. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states since his discharge, he got married, started his own successful business, raised four wonderful children, volunteered in multiple ways, to include after Hurricane Katrina and the BP oil spill. Today, he serves Jefferson Parish 1st Justice Court as a Deputy and also volunteer with the New Orleans Constable's Office 1st City Court as a Deputy. 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 general (under honorable conditions) or 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. 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 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 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. The applicant through counsel seeks relief contending, his knee was injured in the line of duty during land navigation training at Fort Jackson, SC, where Dr. B. diagnosed the injury, put him on crutches and a limited duty profile to include no marching. A statement of medical examination and duty status dated 8 May 2007, indicates on 22 March 2007, while attending Basic Combat Training at Ft Jackson, SC, the applicant was participating in land navigation and fell. MRI shows proximal medial tibial stress fracture and meniscus oblique tear in his left leg. The applicant further contends, instead of being properly supervised post-injury, he was maltreated and suffered from an abuse of authority by Drill Sergeant M., who harassed and bullied him by throwing his crutches away in the field then forcing him to march in violation of his medical profile limitations. Although the applicant alleges that he was maltreated, harassed and bullied 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 applicant also contends, as a direct result of Drill Sergeant M., his injury worsened into a medial tear in the posterior horn of his meniscus and he suffered a fractured tibia during the forced march. The record of evidence, a statement of medical examination and his duty status; the unit commander states after the drill sergeant told the applicant not to train because he was on profile, the applicant waited until the drill sergeants were engaged in training and ran the land navigation course. He fell and was injured. The applicant additionally contends, he should have been sent to a medical evaluation board (MEB) for that injury or at least recycled until he could heal; and Drill Sergeant M. denied him proper medical care and abused his authority; his discharge was improper, in that it failed to comply with disability evaluation procedure and was inequitable as all Soldiers with medical concerns in the line of duty should be properly evaluated and managed, not only by health care professionals, but especially by their drill sergeants while at basic training. 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 bears the burden of presenting of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated. Further, the applicant contends, he took matters into his own hands to get care, to put his personal finances in order and removed himself from the hostile environment; and he should have gone to the Command Sergeant Major or the Inspector General, but instead he went home without authority. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 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 circumstances surrounding the discharge and post-service accomplishments. 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 AR20180014022 1