1. Applicant's Name: a. Application Date: 29 November 2018 b. Date Received: 15 January 2019 c. Previous Records Review: 24 January 2007, AR20060002628 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's deployment to Iraq was extremely difficult and marked by serious physical and mental abuse, and poor leadership, which inflicted a lasting damage on mental and emotional health. The counsel detailed the circumstances and events surrounding the applicant's deployment, and the actions that led to discharge. Therefore, after having endured repeated harassment and abuse from NCOs during a combat deployment; after being assaulted by two NCOs during a combat deployment; after being ordered to execute a very hazardous combat mission without proper training, equipment, or support; after being unfairly disciplined for a lack of training and leadership failure; after being discouraged from seeking mental health treatment and punished upon receiving such treatment; after having post-deployment leave delayed; after being charged for equipment the applicant did not lose; after suffering a stoppage of pay; and after having suffered a third physical assault in less than a year, the applicant, a broken Soldier, left the unit without authorization. The applicant's departure was the result of the abuse, stress, deprivation, and poor leadership suffered during and after deployment. The applicant, then voluntarily returned to duty and was not apprehended by authorities. When the applicant left the unit, the applicant did not do so to avoid a combat deployment, but because the unit broke him. The applicant wishes to not have made that choice and wishes that the circumstances and opportunities have been different-the applicant was broken and felt like he had no other options. Thus the applicant's actions are understandable, excusable, worthy of forgiveness, and do not warrant the negative separation and discharge received. The applicant's deployment experiences profoundly impacted life, which currently affects the applicant with thoughts of paranoia, anger, depression, and PTSD. An incident involving small arms fire attack on the applicant and fellow Soldiers, by insurgents also qualifies the applicant for the CAB, which should be added to the DD Form 214. Moreover, at the time the applicant was counseled to accept a UOTHC discharge, the applicant was suffering from PTSD, depression and was distressed, angry, anxious, and mentally unstable- the applicant was under duress and not in a stable frame of mind. The applicant was not aware about giving up any and all of VA benefits. The applicant was never given the opportunity to review the DD Form 214 before it was completed, nor received a copy. The applicant's current behavioral health condition has a significant adverse impact on the ability to gain and maintain employment, personal relationships, overall well-being, and the quality of life. The applicant needs relief from the life hindering conditions developed while serving the country. Changing the reason for the applicant's separation and the characterization of discharge will go a long way towards helping the applicant get the necessary help. Granting the applicant's requests is compelled by the evidence that is consistent with the Secretary of Defense's Guidance, AR 15- 180, AR 635-40, and AR 635-200. 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 no active duty records due to the period of service. The VA has diagnosed the applicant with Adjustment Disorder, Unspecified Anxiety Disorder, Unspecified Depressive Disorder, Marijuana Dependence and Mood Disorder. The applicant does not currently have a diagnosis of PTSD. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 29 July 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's homelessness and the circumstances surrounding the discharge. 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: 5 November 2004 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 8 July 2004, the applicant was charged with the following: Charge: Violation of Article 86, UCMJ: The applicant absent himself from his unit without authority on 25 May 2004, and remained absent until 4 July 2004. (2) Legal Consultation Date: 9 July 2004 (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: 7 October 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 February 2003 / 6 years b. Age at Enlistment / Education / GT Score: 17 / GED / 117 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13M10, Multiple Launch Rocket System (MLRS) Crewmember / 1 year, 7 months, 5 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: NIF / NIF f. Awards and Decorations: NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DA Form 4187 (Personnel Action), dated 14 July 2004, indicates the applicant's duty status changed from DFR to PDY, effective 4 July 2004, and that he surrendered to military authorities on 4 July 2004. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 40 days (AWOL on 25 May 2004, until 3 July 2004) / The applicant surrendered to military authorities. j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: VA Medications list show the applicant was prescribed medication for depression and irritability. VA Progress Notes, dated 13 April 2005, indicates the applicant being treated for depression. Saint Luke's Health System letter, dated 6 May 2015, reflects an assessment of PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 29 November 2018; attorney-authored brief; Memorandum with attachment, dated 25 August 2017, rendered by Under Secretary of Defense for Personnel and Readiness; DD Form 214; applicant-authored Affidavit; discharge orders; enlistment contract; Affidavit (rendered by applicant's father); Saint Luke's Health System letter, dated 6 May 2015; VA Medications list; and the applicant's Chapter 10 request. Additional evidence: Three character reference statements, and six LESs (Leave and Earning Statements) October 2003 to March 2004. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence indicates he volunteers and helps at a Family Life Center community church group. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. 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 to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or 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 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 (under honorable conditions) discharge by the separation authority at the time of discharge. 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 contends his deployment experiences, physical and mental abuse, and poor leadership inflicted mental and emotional damage. An initial review of the applicant's separation case file and OMPF contained no evidence of a Post-Traumatic Stress Disorder diagnosis, except for the applicant's documentary evidence which reflects his treatment for depression, and an assessment of PTSD. If based on the available record and additional evidence by the applicant, 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. Although the applicant is scheduled for a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., a diagnosis of PTSD and/or behavioral health issues by a competent medical authority) for the Board's consideration because they are not available in the official record and the applicant did not provide medical diagnoses of his behavioral health issues and/or PTSD. The applicant's numerous contentions as bases for his discharge being unjust and warranting requested relief, were carefully considered. 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 any evidence to support the contention that he was unjustly discharged. The applicant's statements and through his counsel's brief, 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. Furthermore, although the record of evidence does not document the applicant's deployment and the DD Form 214 does not reflect any deployment information or overseas service, the applicant's requested changes to the DD Form 214 to reflect a Combat Action Badge award does not fall within the purview of this Board. Therefore, that portion of the request for changes to his DD Form 214 to reflect the applicant's combat tour is referred to the Army Board for Correction of Military Records (ABCMR) under case number AR20190002496. The applicant contends that he was harassed and abused by members of his chain of command; however, he 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 applicant contends his current behavioral health condition has a significant adverse impact on his ability to gain and maintain employment, his personal relationships, his overall well-being, and the quality of his life, and that changing the reason for his separation and the characterization of his discharge would help him obtain the help he needs. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does 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 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. The third party statements provided with the application speak highly of the applicant's character and post-service performance, and 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. In consideration of the applicant's post service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his accomplishments and complete period of service 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 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 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 29 July 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's homelessness and the circumstances surrounding the discharge. 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. 11. 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 AR20190002493 6