1. Applicant's Name: a. Application Date: 13 March 2019 b. Date Received: 18 March 2019 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 pertinent part and in effect, nonstop harassments by the command sergeant major led the applicant to a mental and nervous breakdown and using marijuana, and heavily consuming alcohol and "extocy." Seeing a career slipping through the applicant's fingers and the applicant could not do anything about it, the applicant panicked and went AWOL for a few weeks. The applicant returned a week prior to the unit movement formation and deployment to Afghanistan. However, the unit confined the applicant to the post and started the separation proceedings. The applicant consulted with the IG, ASAP, and made multiple requests to be stationed elsewhere; subsequently, the applicant was placed in pretrial confinement in pursuance of court-martialing the applicant with several false charges. The applicant suffered severe depression, which the applicant still suffers from. The applicant suffered from being mistreated, thrown in prison, and falsely accused. The applicant was discharged in August 2007, but by December 2007, was in prison for aggravated crimes. Since release from prison in 2012, the applicant has been homeless. The applicant has three children; however, the depression hinders the applicant from being a productive father to them. 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 with disturbance of emotions and conduct, Alcohol Abuse, Alcohol Dependence, Cannabis Abuse, and Personality Disorder NOS. VA records only contain DoD content. 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 records review conducted at Arlington, VA on 20 November 2019, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length of service, to include combat service, homelessness, a prior period of honorable service, and the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH), and as a result it is inequitable. 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: 13 September 2007 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NIF; however, General Court-Martial Order Number 26.1, dated 27 August 2007, indicates the applicant was arraigned on the following charges and its specification(s) on 26 July 2007: Charge I: Violation of Article 85, UCMJ, with intent to shirk importance of service, namely: deployment to Afghanistan, quit his unit on 7 February 2007, and remained absent in desertion until 9 March 2007. Charge II: two specifications of violating Article 86, UCMJ, on divers occasions between 11 January 2007 and 23 January 2007, and between 21 March 2007 and 2 May 2007, without authority, failed to go to his appointed place of duty at the prescribed time. Charge III: Violation of Article 87, UCMJ, on 7 March 2007, through design missed the movement of his unit, with which he was required in the course of his duty to move. Charge IV: Violation of Article 112a, UCMJ, for wrongfully using marijuana between 28 February 2007 and 29 March 2007. Additional Charge I: Violation of Article 86, UCMJ, on divers occasions between 17 May 2007 and 8 June 2007, without authority, failed to go to his appointed place of duty at the prescribed time. Additional Charge II: Violation of Article 90, UCMJ, disobeying a superior commissioned officer between 19 May 2007 and 20 May 2007. Additional Charge III: Violation of Article 112a, UCMJ, for wrongfully using marijuana between 1 April 2007 and 1 May 2007. On 27 August 2007, pursuant to an approved Chapter 10, AR 635-200, the charges and its specification(s) were dismissed to provide for the application's separation. (2) Legal Consultation Date: NIF; however, the GCM Order No. 26.1, indicates the applicant requested to be discharged pursuant to the provisions of Chapter 10, AR 635-200. (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 (NIF) (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: NIF, but according to GCM No. 26.1, indicates an approval date of 27 August 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 May 2004 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42L10, Administrative Specialist / 3 years, 11 months, 14 days d. Prior Service / Characterizations: ARNGUS (13 February 2003 to 22 March 2003) / NA IADT (23 March 2003 to 19 July 2003) / UNC ARNGUS (20 July 2003 to 13 October 2003) / NA NC ARNG (14 October 2003 to 18 May 2004) / HD e. Overseas Service / Combat Service: SWA / Iraq (1 February 2005 to 21 January 2006) f. Awards and Decorations: NDSM; ICM-AH; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order Number 26.1, dated 27 August 2007, described at the preceding paragraphs 3c(1)-(5). i. Lost Time / Mode of Return: 209 days (Desertion: 8 February 2007 to 8 March 2007, for 29 days) (The following dates noted on DD Form 214, do not document the reasons for dates counted as lost time, although charges and its specification(s) indicate inclusive dates of having been charged for violations of several Articles under the UCMJ, and the date of the applicant's arraignment. Nonetheless, they are noted as time lost in block 18 (Remarks) of DD Form 214: Absences: 9 March 2007 to 18 August 2007, for 163 days; and 28 August 2007 to 13 September 2007, for 17 days) / Mode of return during each period of absences are NIF j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 13 March 2019, with applicant-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 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 an upgrade of his under other than honorable conditions discharge to honorable. 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 that being harrassed and mistreated by members of his chain of command led to his misconduct, behavioral issues, and subsequently, his discharge. However, 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. The applicant contends that behavioral health issues resulting from being harassed contributed to his discharge from the Army. However, the service record does not support the applicant's contention, and the applicant submitted no documentary evidence to support it, to corroborate the discharge was the result of any medical condition. Further, 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., documentary evidence of behavioral health diagnoses by a competent medical authority), for the Board's consideration because they are not available in the official record. The applicant contends that he is currently homeless and needs help. However, eligibility for housing supportive program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. Based on the available record, 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 November 2019, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length of service, to include combat service, homelessness, a prior period of honorable service, and the circumstances surrounding the discharge (i.e. in- service diagnosis of OBH), and as a result it is inequitable. 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 AR20190005156 1