1. Applicant's Name: a. Application Date: 22 April 2019 b. Date Received: 1 May 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 and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, PTSD contributed to the misconduct. The under other than honorable conditions discharge was disproportionate given record of service and nature of misconduct. PTSD is associated with intimate partner violence among combat veterans. The applicant is entitled to relief under the Kurta Memorandum. An upgrade is appropriate based the quality of service; family and personal problems. A prior records review conducted at Arlington, VA on 26 October 2018. 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 Anxiety, Adult Sexual Abuse, Psychological Abuse, Occupational and Martial Problems. The VA has diagnosed the applicant with PTSD, Major Depressive Disorder, and Depressive Disorder NOS. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 9 December 2019, and by a 3- 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, post-service accomplishments, a prior period of honorable service, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD and OBH). 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: 30 November 2005 c. Separation Facts: Yes (1) Date Charges Were Preferred: 28 July 2005 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 28 July 2005, the applicant was charged with unlawfully striking Ms. E.C., on the head and neck and pulled out some of her hair (15 April 2005). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 26 September 2005, applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 30 September 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 August 2004 / Indefinite b. Age at Enlistment / Education / GT Score: 40 years / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92Y10, Unit Supply Specialist / 15 years, 2 months, 7 days d. Prior Service / Characterizations: USNR, 21 September 1990 to 15 October 1990 / NA USN, 16 October 1990 to 15 October 1992 / HD USNR, 16 October 1992 to 1 November 1995 / NA RA, 2 November 1995 to 9 February 1998 / HD RA, 10 February 1998 to 27 September 2000 / HD RA, 28 September 2000 to 17 October 2001 / HD RA, 18 October 2001 to 19 August 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq, 24 January 2004 to 17 March 2005 f. Awards and Decorations: JSCM, ARCOM-2, AAM-5, AGCM-3, NDSM-2, ICM, GWOTSM, NOPDR, ASR, MFOM, CAB g. Performance Ratings: February 2004 to January 2005, Among The Best h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA Progress notes, dated 19 May 2017, revealed the applicant was diagnosed with PTSD and depression. He was prescribed medication for these conditions. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief; petition in support of application (ten pages); DD Form 214; Navy DD Form 214; orders for award of several awards and badges; enlisted performance record; enlistment contract/record's; service school academic evaluation report; several NCO Evaluation Report's; separation file documents; VA medical progress notes; Kurta Memorandum dated, 25 August 2017 relating to mental health conditions (five pages); extracts from Army Regulation 608-18, pages 78-79; applicant's declaration to the Board; The Role of PTSD in Bi-directional Intimate Partner Violence in Military and Veteran Populations: A Research Review; Intimate Partner Aggress on Perpetrated and Sustained by Male Afghanistan, Iraq, and Vietnam Veterans With and Without Posttraumatic Stress Disorder; Trauma, PTSD, Partner Violence in Military Families; and Examining the Association between Posttraumatic Stress Disorder and Intimate Partner Violence Perpetration. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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 although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. 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. 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 a combat tour; however, it did not support the issuance of a general or an honorable discharge by the separation authority at the time of separation. The applicant requests a change to the narrative reason for separation. 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 regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending, PTSD contributed to his misconduct. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that PTSD contributed to his misconduct. The applicant further contends, his under other than honorable conditions discharge was disproportionate given record of service and nature of misconduct; and an upgrade is appropriate based his quality of service; family and personal problems. The applicant's service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered. The applicant also contends, PTSD is associated with intimate partner violence among combat veterans. The applicant submitted several articles regarding intimate partner violence; these articles are acknowledged. The applicant additionally contends, he is entitled to relief under the Kurta Memorandum. The memorandum states 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. It further stated, 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. 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. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 9 December 2019, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, post-service accomplishments, a prior period of honorable service, and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of PTSD and OBH). 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 AR20190009086 5