1. Applicant's Name: a. Application Date: 19 January 2019 b. Date Received: 4 February 2019 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 honorable. The applicant through counsel seeks relief contending, in effect, the characterization of service was unjust given many years of honorable service and the extraordinary circumstances that existed prior to separation. The applicant needs an upgraded discharge so that the applicant may continue to serve the community and seek employment in a public service career field. The current characterization of service makes pursuing such a career incredibly difficult. The applicant is a combat veteran who served the country honorably for nine years. The applicant's honorable military service should not be characterized by the isolated mistakes made during the worst time of life. 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 Phase of Life Problem, Adjustment Insomnia, Alcohol Abuse, and Adjustment Disorder with Depressed Mood. The applicant does not currently have a service-connected rating from the VA. In summary, the applicant did 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 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: 11 May 2012 c. Separation Facts: Yes (1) Date Charges Were Preferred: 13 August 2010 and 13 February 2012 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which shows on 13 August 2010, the applicant was charged with conspiring with members of Bravo Company, to commit premediated murder of Afghan noncombatants, and in order to effect the object of the conspiracy SPC X, SSG X. and CPL X., did shoot with firearms a male of apparent Afghan descent between (1 November 2009 and 11 May 2010); the applicant conspired with SSG X., SSG X., SGT X., SGT X, SPC X. and PFC X., to commit aggravated assault with a dangerous weapon upon three males of apparent Afghan descent, and in order to effect the object of the conspiracy, the applicant, SSG X, SSG X, SGT X, SGT X., SPC X. and PFC X., did shoot at three males of apparent Afghan descent with loaded weapons between (1 March 2010 and 31 March 2010); the applicant did with premeditation murder a male of apparent Afghan descent by means of shooting him with firearms (22 February 2010); the applicant did commit an assault upon three males of apparent Afghan descent by shooting at them with a loaded firearm between (1 March 2010 and 31 March 2010). The evidence of record contains a DD Form 458, Charge Sheet which shows on 13 February 2012, the applicant was additionally charged with violating a lawful general order, by wrongfully photographing and possessing visual images of human casualties (22 February 2010); having knowledge of a lawful order issued by 1LT X., restricting him to Joint Base Lewis-McChord and not consume alcohol, an order which it was his duty to obey, did fail to obey the same by leaving Joint Base Lewis-McChord and consuming alcohol (14 January 2012); unlawfully grab PVT / E-1 E.R.Q. with his hands and throw him to the ground (21 December 2010); drunk and disorderly which conduct was prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces (21 December 2010). (3) Recommended Characterization: Applicant's chain of command recommended an Under Other Than Honorable Conditions. (4) Legal Consultation Date: 13 March 2012, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 26 March 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 March 2009 / 6 years b. Age at Enlistment / Education / GT Score: 28 years / GED Certificate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 8 years, 4 months, 27 days d. Prior Service / Characterizations: RA, 24 February 2003 to 2 November 2005 / HD RA, 3 November 2005 to 15 March 2009 / HD e. Overseas Service / Combat Service: Germany / SWA / Iraq x2, 14 February 2004 to 14 February 2005 and 6 August 2006 to 8 November 2007 f. Awards and Decorations: ARCOM-2, AAM, AGCM-2, NDSM, ICM-2CS, GWOTEM, GWOTSM, ASR, OSR-4, NATO MDL CIB, VUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: Pretrial confinement for 290 days, 1 July 2010 21 April 2011 j. Diagnosed PTSD / TBI / Behavioral Health: VA mental health document dated, 11 March 2008, relates the applicant had a diagnosis of PTSD with insomnia and nightmares. VA document dated, 20 October 2010, revealed the applicant had a provisional diagnosis of headache and a history of TBI. He also had problems such as chronic migraine headache, adjustment disorder with mixed emotional features, anxiety disorder (NOS), sleep disturbances, and an adjustment disorder with depressed mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief (six pages) with Enclosures 1 through 25 as listed with the application. Enclosure 1, applicant's biography (eight pages); Enclosure 2, DD Form 214; Enclosure 3, Enlisted Record Brief; Enclosure 4, medical record excerpts; Enclosure 5, 2005 and 2009 Reenlistments; Enclosure 6, Army Medals; Enclosure 7, charge sheet, 13 Aug 2010; Enclosure 8, investigating officer's report, 19 July 2011; Enclosure 9, GPS Monitoring Device Report; Enclosure 10, E.Q.'s offer to plead; Enclosure 11, E.Q.'s stipulation of fact; Enclosure 12, E.Q.'s immunity; Enclosure 13, E.Q.'s Results of Trial; Enclosure 14, charges dismissal letter, 2 Feb 2012; Enclosure 15, newspaper articles regarding dismissal of charges; Enclosure 16, charge sheet, 13 February 2012; Enclosure 17, human casualty photograph; Enclosure 18, CENTCOM General Order 1B, 13 March 2006; Enclosure 19, separation in lieu of trial agreement, 2012; Enclosure 20; Firefighter and EMT Certifications; Enclosure 21, letters of recognition; Enclosure 22, Court of Appeals Testimony; Enclosure 23, Eastern Washington University Transcript; Enclosure 24, National Society of Collegiate Scholars Membership Letter; and M.W. photos. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states through counsel since his discharge, he volunteers as an EMT and Firefighter to keep his community safe, provides guidance to young men and women through coaching, and is pursuing a meaningful career as a teacher or nurse. 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. 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 the characterization of service from under other than honorable conditions 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 several acts of significant achievement and valor to include two combat tours; however, it did not support the issuance of an honorable or a general discharge by the separation authority at the time of separation. The applicant through counsel seeks relief contending, his characterization of service was unjust given his many years of honorable service and the extraordinary circumstances that existed prior to his separation; and he is a combat veteran who served his country honorably for nine years. 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. He needs an upgraded discharge so that he may continue to serve his community and seek employment in a public service career field; and his current characterization of service makes pursuing such a career incredibly difficult. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. His honorable military service should not be characterized by the isolated mistakes he made during the worst time of his life. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 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 his/her counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 29 July 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20190002719 5