1. Applicant's Name: a. Application Date: 2 January 2019 b. Date Received: 7 January 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, the discharge is inequitable because it was based on incidental behavior that occurred while the applicant was suffering from undiagnosed service-connected mental health condition. The condition was subsequent to other service-connected physical injuries. The applicant states depression and anxiety resulted from other physical injuries, which caused the applicant to act out violently and counter to orders from the chain of command and other legal authorities. This behavior led directly to an uncharacteristic discharge from the Army. The applicant regrets the action that led to discharge and has worked hard to come to grips with mental and physical health, so that the applicant may move forward in an honorable manner. The applicant struggles with disabilities at times and has battled with substance abuse since discharge. The applicant is now clean and clear of all self-medicating practices and has worked hard to obtain a bachelor's degree and is close to earning a master's degree. The applicant hopes to serve the public again in a good manner that will bring credit and honor to the family and the country. 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 therapy and medication management while on active duty. Post-service, the applicant is 50% service-connected from the VA for Major Depressive Disorder. The VA has also diagnosed the applicant with Alcohol and Cannabis Abuse. The applicant has not been diagnosed with PTSD. 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 records review conducted at Arlington, VA on 20 March 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: 20 January 2012 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 7 December 2011, the applicant was charged with: Charge I, three specifications of violating Article 128, UCMJ, for: The applicant, did, on or about 8 October 2011, assault SGT H, SGT C and SPC T who then were known by the accused to be persons then having and in the execution of military police duties, by lunging at them. The applicant did, on or about 1 December 2011, assault SFC D who then was known by the accused to be a noncommissioned officer of the United States Army, by grabbing him by the shirt and shoving him on the-chest with his hands and arms. The applicant did, on or about 8 October 2011, assault SGT H, who then was then known by the accused to be a person then having and in the execution of military police duties, by spitting on him. Charge II, two specifications of violating Article 90, UCMJ, for: The applicant, did, on or about 1 December 2011, strike CPT M, his superior commissioned officer, then known by the applicant to be his superior commissioned officer, who was then in the execution of his office, on the shoulder and chest with the applicant's own chest. The applicant, did, on or about 1 December 2011, offer violence against CPT M, his superior commissioned officer, then known by the applicant to be his superior commissioned officer, who was then in the execution of his office, by attempting to strike CPT M with the applicant's fist. Charge III, two specifications of violating Article 134, UCMJ, for: The applicant did, on or about 8 October 2011, wrongfully communicate to SGT H a threat by telling him, "If I ever see you Motherfucker, you 're dead," or words to that effect, which conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. The applicant, did, on or about 1 December 2011, wrongfully communicate to SFC D a threat by telling him, ''Get the fuck away from me, or so help me God I'm going to punch you," or words to that effect, which conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. Charge IV, violating Article 89, UCMJ, for: the applicant, did, on or about 1 December 2011, behave himself with disrespect toward CPT M, his superior commissioned officer, then known by the applicant to be his superior commissioned officer, by saying to him, "I fucking hate you," "This is all your fucking fault," and "You are a fucking queer," or words to that effect. Charge V, two specifications of violating Article 91, UCMJ, for: The applicant, on or about 8 October 2011, was disrespectful in language toward SSG S, a noncommissioned officer, then known by the applicant to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him, "If you hurt my foot, I will murder you," and "I have a knife in my cast and I will shank your belly," or words to that effect. The applicant, on or about 8 October 2011, was disrespectful in language toward SFC D, a noncommissioned officer, then known by the applicant to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him, "Fuck you, get the fuck away from me," or words to that effect. Charge VI, seven specifications of violating Article 86, UCMJ, for: The applicant, did, on or about 11 October 2011, without authority, fail to go at the time prescribed to his appointed place or duty, to wit: 0630 hours formation at the Warrior Transition Battalion Barracks, building 9057. The applicant, did, on or about 11 October 2011, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1500 hours formation at the Warrior Transition Battalion Barracks, building 9057. The applicant did, on or about 13 October 2011, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1500 hours formation at the Warrior Transition Battalion Barracks, building 9057. The applicant, did, on or about 28 October 2011, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1425 hours at the cast room. The applicant, did, on or about 15 November 2011; without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1330 hours at the PT Clinic. The applicant did, on or about 21 November 2011, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0915 hours at the PT Clinic. * The applicant did, on or about 21 November 2011, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1500 hours formation at the Warrior Transition Battalion barracks, building 9057. (2) Legal Consultation Date: 5 December 2011 (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: 5 December 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 August 2010 / 400 days (OAD) b. Age at Enlistment / Education / GT Score: 24 / Some College / 130 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years, 10 months, 19 days d. Prior Service / Characterizations: RA, 2 March 2005 - 29 June 2008 / HD USMA, 30 June 2008 - 4 June 2009 / HD USAR, 5 June 2009 - 24 June 2009 / NIF ARNG, 25 June 2009 - 20 January 2012 / Under Other Than Honorable Conditions (Concurrent Service) e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR, OSR, AFRMM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: 412 days (NIF, 2 December 2010 - 18 January 2012 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA disability rating decision, dated 18 December 2018, which reflects the applicant was rated 50 percent disability for acquired psychiatric disorder; bipolar I disorder with other stressor-related disorder (claimed as anxiety and depression). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Rating Decision with allied treatment records; three DD Forms 214; DD Form 215; two Enlisted Record Briefs; Employment Contract; Certificate of completion; Transcripts of Academic Record; Bachelor's Degree certificate; transcripts; and, résumé. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has earned his Bachelor's Degree and is pursuing his Master's Degree. 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 requests an upgrade of his under other than honorable conditions discharge to honorable conditions. 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 the VA has granted him a service connected disability for acquired psychiatric disorder; and, bipolar I disorder with other stressor-related disorder. He contends it was his undiagnosed mental conditions, which affected his behavior and led to his discharge. 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 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 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 20 March 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 AR20190000701 1