1. Applicant's Name: a. Application Date: 3 June 2019 b. Date Received: 6 June 2019 c. Previous Records Review: 20 July 2012, AR20120003243 (Reconsideration based on liberal consideration for PTSD issues) d Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, the applicant was suffering from the symptoms of PTSD, such as having nightmares and flashbacks, at the time of discharge. The applicant had just returned from a 15-month tour in Iraq. The applicant did not receive proper counsel by a legal representative. The applicant had many years of good service. The applicant was on third enlistment with two honorable discharges. The applicant developed substance abuse problems, but was denied rehabilitation. 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 Alcohol Dependence; Child Abuse Physical by Father; Chronic PTSD; Cocaine Related Disorder; Major Depression, single episode; Post-concussion Syndrome. The applicant is 100% service-connected from the VA. The VA has also diagnosed the applicant with Partial Seizure Disorder, Alcohol-Induced Psychotic Disorder and Schizoaffective Disorder. In summary, the applicant has a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army In a records review conducted at Arlington, VA on 12 August 2020, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length, prior period of honorable service and quality of service. 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 and SPD 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: 9 July 2007 c. Separation Facts: (Note the Charge Sheet in the record is illegible, information based on Article 32 Investigation findings and the applicant's request for discharge in lieu of court- martial.) (1) DD Form 458 (Charge Sheet): In May 2007, the applicant was charged with the following: Charge I: Violation of Article 112a, UCMJ, for wrongfully using cocaine between 13 October 2006 and 16 October 2006. Charge II: Two Specifications of Violating Article 128, UCMJ, for assaulting Mrs. X, his spouse, by unlawfully grabbing her around the neck with his arm on 16 October 2006, and for assaulting X., his son, a child under the age of 16, by unlawfully grabbing him around the waist with his arm on 16 October 2006. Charge II: Violation of Article 134, UCMJ, by willful act or omission permitting the serious injury of Ms. X on her head causing hemorrhage on 16 October 2006, in violation of "Assimilated" Virginia "Code Section 18.2-371.1." (2) Legal Consultation Date: 22 May 2007 (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: 28 June 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2004 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F10, Petroleum Supply Specialist / 6 years, 7 months, 3 days d. Prior Service / Characterizations: RA (16 November 2000 to 21 May 2003) / HD RA (22 May 2003 to 30 September 2004) / HD e. Overseas Service / Combat Service: NIF / NIF f. Awards and Decorations: ARCOM; AAM; AGCM-2; GWOTEM; GWOTSM; ASR g. Performance Ratings: Two NCOERs: February 2005 thru July 2005, Among the Best 1 August 2005 thru 31 July 2006, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Investigating Officer's Report, dated 15 June 2007, with report findings and recommendations by memorandum, dated 12 June 2007. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 21 days (NIF; however, chain of commands' recommendations comment on the applicant's "current incarceration," and records show lost time began 19 June 2007 to 9 July 2007) / The applicant was discharged on 9 July 2007. j. Diagnosed PTSD / TBI / Behavioral Health: Memorandum, dated 21 May 2007, rendered by a senior defense counsel, indicates the applicant evaluated by three mental health professionals, "diagnosed him with cocaine dependence, alcohol dependence, and anxiety disorder not otherwise specified," and that "it was reasonable to believe that based on the facts, [the applicant's] conditions were a large contributor to his conduct on 16 October 2006." Applicant's documentary evidence: VA Rating Decision, dated 12 May 2019, reflects that the applicant was granted an evaluation of 100 percent disability for post-traumatic stress disorder with substance abuse and schizoaffective disorder, bipolar type/ 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 3 June 2019; VA Rating Decision, dated 12 May 2019; and DD Form 214. 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 other 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 regarding his behavioral health issues which involved suffering from the symptoms of PTSD, 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 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, 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 the discharge was unjust because he did not receive proper counsel by a legal representative, he was on his third enlistment with two honorable discharges when he developed substance abuse problems, and he was denied rehabilitation.. 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 sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements 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. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 12 August 2020, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length, prior period of honorable service and quality of service. 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 and SPD 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 AR20190008306 3