1. Applicant's Name: a. Application Date: 18 July 2019 b. Date Received: 29 July 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, at the time of his discharge, he was given a choice of either court-martial or a discharge: The applicant states, he was never informed of the full charges against him. At the time of his decision to elect a discharge, his wife was in the hospital with their premature baby. The applicant states, he was stressed out about her health and the baby's health and was not in a great place mentally. If the applicant had the opportunity to do it over again, he would have taken his chance at a court-martial, because he was innocent of the charges against him. The evidence of record reflects the applicant had a prior records review conducted at Arlington, VA on 14 May 2007. 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 Acute PTSD. Review of the VA medical records indicates that there are no VA specific medical notes. However, the VA medical record does contain some DOD medical notes which are not found in AHLTA. The applicant is not service-connected from the VA. In summary, the applicant has a BH diagnosis that mitigates part of the misconduct which led to separation from the Army. In a telephonic personal appearance hearing conducted at Arlington, VA on 7 December 2020, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (PTSD diagnosis), and post-service accomplishments, severe family matters, and applicant's candor during hearing. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. (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: 31 August 2004 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 12 July 2004, the applicant was charged with: Charge I: Violation of Article 91, UCMJ, for: Specification 1: The applicant, having received a lawful order from First Sergeant J. B., a superior Noncommissioned officer, then known by the applicant to be a superior Noncommissioned officer, to stand at the position of "parade rest", an order which it was his duty to obey, did at or near Fort Benning, Georgia, on or about 22 June 2004, willfully disobey the same. Specification 2: The applicant, on or about 22 June 2004, was disrespectful in language and deportment toward First Sergeant J. B., a superior Noncommissioned officer, then known to the accused to be a superior Noncommissioned officer, who was then in the execution of his office, by saying to him, "go to hell," and "you are a pathetic old man" or words to that effect and walking away from him. Charge II: Violation of Article 92, UCMJ, for: Specification 1: The applicant did, at or near Fort Benning, Georgia, on or about 21 April 2004, violate a lawful general regulation, to wit: Paragraph 9-4(a)(2), United States Infantry Center Regulation 210-5 with Change 1, dated 6 August 1998, by wrongfully possessing his privately owned firearm, a Ruger 9mm pistol, in his vehicle without having an authorized purpose such as hunting, target shooting, relocation, or initial introduction onto the installation. Specification 2: The applicant did, at or near Fort Benning, Georgia, on or about 21 April 2004, violate a lawful general regulation, to wit: Paragraph 9-5b, United States Infantry Center Regulation 210-5 with Change 1, dated 6 August 1998, by wrongfully transporting his privately owned firearm, a Ruger 9mm pistol, under the passenger seat of his vehicle, rather than the trunk of his vehicle. Specification 3: The applicant did, at or near Fort Benning, Georgia, on or about 21 April 2004, violate a lawful general regulation, to wit: Paragraph 9-5b, United States Infantry Center Regulation 210-5 with Change 1, dated 6 August 1998, by wrongfully transporting his privately owned firearm, a Ruger 9mm pistol, with a loaded magazine affixed to the weapon. Specification 4: The applicant did, at or near Fort Benning, Georgia, on or about 21 April 2004, violate a lawful general regulation, to wit: Paragraph 9-4(b)(4), United States Infantry Center Regulation 210-5 with Change 1, dated 6 August 1998, by not registering his privately owned firearm, a Ruger 9mm pistol, with the Provost Marshal Vehicle/Firearms Registration Section within three working days of its introduction onto the installation. Charge III: Specification: The applicant did, at or near Fort Benning, Georgia, on or about 22 June 2004, wrongfully use provoking words towards First Sergeant J. B., to wit: "what you wanna do?" or words to that effect, and gestures, to wit: putting his face in that of First Sergeant J. B. and balling up his fist. (2) Legal Consultation Date: 27 July 2004 (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: 10 July 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 April 2002 / 3 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 63M10, Bradley Fighting Vehicle System Maintainer / 2 years, 4 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: GWOTSM, GWOTEM, ARCOM, PUC, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Military Police Report, dated 21 April 2004, reflects the applicant was apprehended for: Failure to Obey an Order or Regulation, Improper Transfer of Weapon. Military Police Report, dated 22 April 2004, reflects the offense of: Information: Civil Arrest: Pointing Pistol at Another Person (Off Post). Military Police Report, dated 23 June 2004, reflects the applicant was apprehended for: (Civil report) Reckless Driving (Off Post); No Proof of Insurance (Off Post); Obstruction of Justice (Off Post). CG Article 15, dated 12 December 2003, for failing to go at the time prescribed to his appointed place of duty on three occasions (2 October and 17 November 2003). The punishment consisted of a reduction to E-2; forfeiture of $301 pay (suspended); and, extra duty and restriction for 14 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Letter from counsel; two emails; Precept - Estate Constable card; ASC Appointment Notice; US Immigration and Customs Enforcement letter; Firearm User's Certificate; passport photographs; Driver's Permit; Detainee Transfer Notification; ARCOM certificate; copies of his military records; four personal photographs; National Identification Card; Certificate of Training. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has obtained employment and is working two jobs. 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. 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 general (under honorable conditions). 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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant contends that he was having family issues that affected his decision to request a discharge in lieu of court-martial. However, he 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 his decision, which led to the separation action under review. Further, 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 character of the applicant's discharge is commensurate with his overall service record. The applicant contends he was not right mentally at the time of his discharge. However, the service record contains no evidence of mental disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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): Applicant provided oral argument and statements in support of contentions and counsel provided in written submissions and in support of previously submitted documentary evidence. b. The applicant presented the following additional contention(s): c. Counsel / Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a telephonic personal appearance hearing conducted at Arlington, VA on 7 December 2020, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (PTSD diagnosis), and post-service accomplishments, severe family matters, and applicant's candor during hearing. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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 AR20190011979 1