a1. Applicant's Name: a. Application Date: 11 March 2019 b. Date Received: 13 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, was hospitalized, diagnosed with, and treated for PTSD during the course of the events that led to the current discharge. The PTSD was directly responsible for the grossly out-of-character actions after returning from Iraq. The PTSD diagnosis was not given the proper consideration during the court-martial by current standards. The applicant was not given proper treatment for the PTSD after returning from Iraq, as such, the applicant was not of sound mind to properly consider the legal issues or understand the options available. The applicant was not given proper medication to maintain a clear state-of-mind, which prevented the applicant from processing the current situation while in pretrial confinement. Prior to deployment, the applicant was a model Soldier who was always selected for special details due to the applicant's ability to get things done effectively and efficiently-the applicant was groomed for fast track promotions. (The applicant detailed the duties and recognitions, and deployment experiences in Iraq, and the events and circumstances surrounding the behavioral health condition leading up to using marijuana to help cope after returning from Iraq.) The applicant asserts two weeks prior to redeployment, the applicant's mental health began to deteriorate; wherein, the wife informed the chain of command of the applicant's erratic behavior; however, they failed to help and the applicant had to use marijuana to help cope with the symptoms. Upon a suicide attempt by running a car into a wall, the applicant was hospitalized in a mental health treatment center, where the applicant was diagnosed with and being treated for a severe PTSD, depression and anxiety. The applicant was still pending court- martial when the command removed from the secured treatment facility and placed the applicant in pretrial confinement. While in confinement, the applicant did not receive the proper or adequate medications-the applicant's behavioral health became erratic, again, and the depression and anxiety worsened. Witness testimonies in the court-martial provided that the applicant was a great Soldier, but that the applicant was suffering from PTSD, and that although the applicant sought help, the applicant received none. (The applicant detailed the events following the initial court-martial and the subsequent charges.) The applicant asserts that due to the different factors cited and the continued worsening of mental health, the applicant accepted a plea deal to avoid a potential one-year confinement. Since discharge, the applicant suffered from the PTSD and financial hardship. Despite, the applicant never gave up. The applicant secured a career as an electrician. The applicant has full custody of a son. The applicant has no criminal background and a nearly flawless driving record. The applicant is held in high esteem by coworkers, managers, friends and family. However, the current discharge prevents the applicant from progressing with life and the quality of life for the children. It holds the applicant back from a better career opportunities, security clearance, and veteran services and benefits. The Department of Veterans Affairs denied the disability claim due to the current discharge, although they determined the applicant has PTSD. Suffering from PTSD prevented the applicant from thinking clearly during the service leading up to discharge. 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 Depressed Mood, Marital Problem, Alcohol Abuse, Depression, Alcohol Dependence, Cannabis Abuse, Major Depressive Disorder, Polysubstance Abuse, Psychoactive Substance Dependence, Anxiety Disorder NOS, Partner Relationship Problem, and PTSD. The applicant does not have any VA records for review. The applicant does not currently have a service-connected rating from the VA. The applicant provided civilian documentation of PTSD. In summary, the applicant had 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 4 October 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). 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: 21 May 2009 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 29 April 2009, the applicant was charged with the following: Charge I: Three Specifications of violating of Article 86, UCMJ: On 21 April 2009, the applicant, without authority left his place of duty, and on two separate occasions on 21 April 2009, he failed to go his appointed place of duty at the prescribed time. Charge II: Violation of Article 112a, UCMJ, the applicant wrongfully used marijuana between 6 March 2009 and 6 April 2009. (2) Legal Consultation Date: 29 April 2009 (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 May 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 April 2006 / 4 years, 18 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 3 years, 1 month, 4 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (10 March 2007 to 8 May 2008) f. Awards and Decorations: ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR; CAB; VUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Result of Trial indicates that a trial by Special Court-Martial that convened on 5 January 2009, found the applicant guilty of two charges: Charge I: Two specifications of violating Article 86, UCMJ, for failing to go to his appointed place of duty at the prescribed time on 25 August 2008, and absenting himself of his unit on 16 July 2008, and remained absent until 25 July 2008. Charge II: Two specifications of violating Article 112a, UCMJ, for wrongfully using marijuana on two separate occasions between 21 April 2008 and 21 May 2008, and 30 May 2008 and 30 June 2008. The sentence consisted of a reduction to E-2, 30 days of confinement, and 60 days of restriction to Fort Benning, GA. An Electronic Copy of DD Form 2624 (Specimen Custody Document - Drug Testing), dated 10 April 2009, indicates the specimen collected on 6 April 2009, on an "IO" (Inspection, Other) basis, provided by the applicant, tested positive for "THC." Negative counseling statements for disobeying a senior NCO and failing to be at his appointed place of duty at the prescribed time on numerous occasions. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: Discharge Summary, dated 4 December 2008, provides an "AXIS I" diagnoses of "Major depression. Rule out adjustment disorder with depressed mood. Posttraumatic stress disorder. Polysubstance abuse." Forensic Psychiatric Evaluation, dated 5 December 2008, rendered by a "Clinical Psychologist" reports "DSM-IV clinical psychiatric diagnoses" as "1. Major Depressive Disorder, Moderate, Recurrent, 2. Anxiety Disorder NOS, 3. Polysubstance Dependence, and 4. Partner Relational Problem. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 11 March 2019, with self-authored statement; Discharge Summary, dated 4 December 2008; t VA Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaires, dated 26 November 2012; counsel-authored statement, dated 29 December 2008; applicant's father statement; five Statements in Support of Claim, dated 5, 15, 16, and 17 October 2016; and a character reference/supporting statement. Additional evidence: applicant-authored statement; DD Form 214; memorandum for record for pretrial confinement; memorandum for waiver of pretrial confinement hearing; ERB; separation file; enlistment documents; Record of Trial (SPCM) with its allied documents; SPCM Record of Proceedings with prosecution/defense/ appellate exhibits; counseling statement for mental health evaluation; Forensic Psychiatric Evaluation, dated 5 December 2008; Post-Trial Recommendation memorandum, dated 2 February 2009; Report of Result of Trial with continuation sheet; Offer to Plead Guilty, dated 24 December 2008; Appendix (Quantum), dated 30 December 2008; GCMCM letter, dated 14 May 2008; Charge Sheet with its transmittal form, dated 29 April 2009; applicant's request for discharge in lieu of trial by court-martial, dated 29 April 2009; Waiver of Pretrial Confinement Hearing, dated 29 April 2009; memorandum for record on pretrial confinement, dated 28 April 2009; Confinement Order; counseling statement, dated 21 April 2009; positive urinalysis memorandum with its associated documents, dated 13 April 2009; and Results by SSN report. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that since his discharge and despite suffering from the PTSD and financial hardship, and never giving up, he secured a career as an electrician; he gained full custody of his son; he has no criminal background and a nearly flawless driving record; and he is held in high esteem by his coworkers, managers, and his friends and family. 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's contentions that his PTSD being directly responsible for his grossly out-of- character actions after returning from Iraq and subsequently his discharge, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post- traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, 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. The applicant contends that an upgrade would provide him better career opportunities, security clearance, and veteran services and benefits, and approval of his disability claim. . 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 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 4 October 2019, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length of service, to include combat service, post-service accomplishments, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). 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 AR20190005179 1