1. Applicant's Name: a. Application Date: 23 November 2018 b. Date Received: 12 December 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, received several Traumatic Brain Injuries (TBI) and suffers from Post-Traumatic Stress Disorder (PTSD). These conditions occurred during, and as a result of, combat service in Iraq and Afghanistan. These injuries, and other physical injuries, reduced the applicant's duty performance and capacity. The most equitable outcome for the Army and the applicant would have been separation via the MED/PEB process. The combat wounds and the character of discharge have made it extremely difficult for the applicant to seek and maintain permanent employment. The team of Veterans Service Officers assisting the applicant, all believe the discharge should be changed to a medical retirement and seek any advice the Board may provide on how to obtain that outcome. The applicant served in the Army for 12 years, wherein the applicant met or exceeded the standards for first 10 years as indicated by the annual evaluation reports and many awards. The evaluations for 2016 and 2017, clearly demonstrate the applicant's performance was deteriorating as the symptoms from TBl and PTSD had an increasingly adverse effect on the applicant's duty performance. Counsel states, the applicant had conditions which should excuse or mitigate the discharge. These conditions existed during and as a result of the applicant's combat service and an upgrade would allow the applicant to have much needed VA benefits. Counsel provides a legal brief with the application, which further details the applicant's contentions and post-service accomplishments. 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, Alcohol Dependence, Anxiety Disorder NOS, Concussion, PTSD, and FAP Involvement. The applicant is 70% service-connected for PTSD and 10% for mTBI from the VA. The VA has also diagnosed the applicant with Major Depressive Disorder. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 27 March 2020, 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: 22 June 2018 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 18 January 2018, the applicant was charged with violating: Charge I, Article 128 UCMJ: Specification 1: The applicant did, on divers occasions between on or about 1 February 2013 and on or about 15 September 2015, commit an assault upon X his spouse, by strangling her, with a means likely to produce death or grievous bodily harm, to wit: placing his arm around her neck and squeezing. Specification 2: The applicant did, on divers occasions' between on or about 22 August 2014 and on or about 15 September 2015, commit an assault upon X, his stepdaughter, by strangling her, with a means likely to produce death or grievous bodily harm, to wit: placing his arm around her neck and squeezing. Specification 3: The applicant did, on divers occasions between on or about 1 February 2013 and on or about 15 September 2015, commit an assault upon X, his stepdaughter, a child under the age of 16 years, by strangling her, with a means likely to produce death or grievous bodily harm, to wit: placing his arm around her neck and squeezing. Specification 4: The applicant did, between on or about 1 June 2015 and on or about 31 August 2015, commit an assault upon X, his spouse, by approaching her in a threatening manner while he held a dangerous weapon, to wit: a loaded firearm. Specification 5: The applicant did, between on or about 1 June 2014 and on or about 21 August 2014, unlawfully strike X, his stepdaughter, a child under the age of 16 years, on the leg with a shovel. Specification 6: The applicant did, on divers occasions between on or about 1 February 2013 and on or about 15 September 2015, unlawfully strike, X, his stepdaughter, a child under the age of 16 years, on her face, back, buttocks, arms, and legs with his hand. Specification 7: The applicant did, on divers occasions between on or about 1 February 2013 and on or about 15 September 2015, unlawfully strike X, his daughter, a child under the age of 16 years, on her face, back, buttocks, arms, and legs with his hand. Specification 8: The applicant did, on divers occasions between on or about 1 February 2013 and on or about 15 September 2015, unlawfully strike X, his daughter, a child under the- age of 16 years, on her face, back, buttocks, arms, and legs with his hand. Charge II, Article 120, UCMJ: The applicant did, on divers occasions between on or about 1 February 2013 and on or about 15 September 2015, commit sexual acts upon X, by causing penetration of her vulva with his penis by threatening or placing her in fear. Charge III, Article 80, UCMJ: Specification 1: The applicant did, between on or about 1 August 2015 and on or about 31 August 2015, attempt to commit a sexual act upon X by causing penetration of her vulva with his*penis, by using unlawful force against her, to wit: pushing her down on a couch, and pulling her pants down. Specification 2: The applicant did, between on or about 30 November 2014 and on or about 15 September 2015, attempt to willfully and maliciously set on fire an inhabited dwelling, to wit: the residence of himself and his family. Charge IV, Article 134: Specification 1: The applicant did, on or about 10 October 2015, wrongfully communicate to X a threat to kill her, their children, and their dogs, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. * Specification 2: The applicant did, between on or about 1 June 2015 and on or about 31 August 2015, wrongfully communicate to X a threat to shoot her If she did not give him her children's social security cards, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. (2) Legal Consultation Date: 6 June 2018 (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: 14 June 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 September 2012 / 5 years b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12B20, Combat Engineer / 12 years, 11 months, 9 days d. Prior Service / Characterizations: RA, 14 July 2005 - 17 April 2007 / HD RA, 18 April 2007 - 17 September 2012 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (23 July 2011 - 10 June 2012 / 29 September 2013 - 12 December 2013), Iraq (6 August 2006 - 8 November 2007 / 4 December 2008 - 15 November 2009) f. Awards and Decorations: ICM-3CS, PH, ARCOM-5, AAM-2, MUC-2, PUC, AGCM-3, NDSM, GWOTSM, ACM-2CS, NCOPDR-2, ASR, OSR-6, NATOMDL, CAB g. Performance Ratings: 1 November 2012 - 31 January 2013 / Fully Capable 1 November 2013 - 31 October 2014 / Fully Capable 1 November 2014 - 30 July 2015 / Fully Capable 30 July 2015 - 29 July 2016 / Qualified 30 July 2016 - 31 August 2017 / Qualified 1 September 2017 - 8 June 2018 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Law Enforcement Report, dated 10 March 2017, reflects the Trial Counsel, Office of the Staff Judge Advocate, opined probable cause did not exist to believe the applicant, committed the offense of Rape as the elements of the crime were not established. Further, probable cause did not exist to believe the applicant committed the offense of Assault against Mr. X. Trial Counsel, further opined probable cause did exist to believe the applicant committed the offense of Assault against Mrs. X and Assault of a Child against Miss X. No additional investigative efforts were required. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a letter from the Salt Lake Behavioral Health, Discharge Summary, dated 5 April 2017. Which reflects the applicant was diagnosed with: Posttraumatic Stress Disorder, Chronic; Alcohol Dependence; Cognitive Disorder secondary to Traumatic Brain Injury; and, Traumatic Brain Injury. The applicant's separation packet contains evidence which reflects the applicant was treated for: Adjustment Disorder with Mixed Emotional Features and Traumatic Brain Injury. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence that attests to his many hours of volunteer service to the Veteran of Foreign Wars. 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. 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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable. 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 acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant contends that he suffers from TBI and PTSD and that these conditions affected his behavior. The applicant's service record contains documentation that supports a diagnosis of in service Adjustment Disorder with Mixed Emotional Features and Traumatic Brain Injury. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong. The applicant contends that he had good service which included a four combat tours. 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 is to be commended for his accomplishments. The applicant contends that an upgrade of his discharge would allow VA benefits. However, eligibility for veteran's benefits to do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 27 March 2020, 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 AR20190000337 1