1. Applicant's Name: a. Application Date: 11 January 2019 b. Date Received: 9 December 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 honorable. The applicant seeks relief contending, in effect, he was a good Soldier and anyone he served with could be asked to vouch for him. The applicant states he had PTSD, when he returned, he overdosed on pain medication in an attempt to forget what he had done and what had been done to Soldiers. The applicant was discharged from the Army in 2011 and in 2015, he was required to go to the VA, where he now goes every week for help. He believes he displayed many signs, which could have received help while he was still in the Army. The applicant states, everything in his life has changed, but people outside of the Army, do not believe in leave no man behind. The applicant states, Captain R. E., stated the applicant was AWOL, but the applicant was in civilian confinement and had never went AWOL. The applicant loved his job and has a clean record as a judge had expunged his record because the applicant had been seeking help for something he could not control. The applicant's life has changed, people look down on him even though they do not know the lives he saved or the decisions he had to make in order to return. Many Soldiers kill themselves because they cannot get help with PTSD, TBI, back and anger problems. The applicant needs the benefits he earned and his NCOs would tell the Board the applicant was a good Soldier and the Army was the applicant's life. The applicant believes his PTSD and TBI were missed and states he has not been in any trouble. When he is at the VA, he tries to help and checks on older veterans. The applicant does not get out much, but he is receiving help. The Army wanted him out so fast that he did not receive his CIB. Though he had a civilian conviction, the applicant did everything he could to go above and beyond while in the Army. No one can say he was a bad Soldier and has paid for his actions and any damage he may have caused. He still has much to deal with, but he is not doing it alone. 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 Stress Disorder; Bereavement without complications; Drug Toxicity, intent undetermined-Opiates and Anticholinergics. The applicant is not service-connected from the VA. The VA has also diagnosed the applicant with TBI/PTSD. 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 28 October 2020, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (TBI/PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Civil Conviction) / AR 635-200 / Chapter 14, Sec II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 9 June 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 August 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted by civil authorities of an offence for which a punitive discharge is authorized under the MCM and that he was sentenced to more than six months confinement. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 May 2011 (5) Administrative Separation Board: On 15 March 2011, the applicant was notified to appear before an administrative separation board and advised of his rights. On 12 May 2011, the applicant conditionally waived consideration of his case before an administrative separation board, contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 17 May 2011, the separation authority disapproved the applicant's conditional waiver and directed the applicant appear before the administrative separation board. On 18 May 2011, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 27 May 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 years, 17 weeks b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 1 month, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (period NIF) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Thirtieth Judicial District Court (minutes), dated 2 November 2009, reflects the court convened and proceeded as follows: State of Louisiana vs the applicant: Count 1: Unauthorized Use of a Motor Vehicle Count 2: Simple Criminal Damage to Property Over $500 Count 3: Simple Burglary of a Pharmacy Count 4: Theft Over $500 Count 5: Possession of Hydrocodone The applicant was present with counsel. The applicant moved to withdraw his former pleas of not guilty and enter pleas of guilty to Count 1: Unauthorized Use of a Motor Vehicle, to the lesser offense in Count 3, Unauthorized Entry into a place of business and Count 5: Possession of Hydrocodone. Waiver of Constitutional Rights and plea of guilty form was signed and filed. The defendant waived all rights entering pleas of guilty. The Court accepted the pleas as being given knowingly, intelligently and voluntarily. The Court deferred imposition of sentence and ordered a pre-sentence investigation with the report to be submitted by 4 January 2010. The Court fixed sentencing for 20 January 2010. On motion of the State, the Court ordered counts 2 & 4 DISMISSED. The applicant was remanded to the custody of the sheriff. The Thirtieth Judicial District Court (minutes), dated 20 January 2010, reflects the court convened and proceeded as follows: State of Louisiana vs the applicant: Count 1: Unauthorized Use of Moveable Count 3: Unauthorized Entry into a Place Business Count 5: Possession of Hydrocodone The applicant was present with counsel. The Court sentenced the applicant as follows, to- wit: Count 1: Unauthorized Use of a Moveable: Serve 6 years at hard labor with the Louisiana Department of Corrections and pay cost of Court. Count 3: Unauthorized Entry into a Place Business: Serve 4 years at hard labor with the Louisiana Department of Corrections and pay cost of Court. The defendant is to make restitution to the victim in the amount of $56,167.05 subject to credit for any amounts paid. Count 5: Possession of Hydrocodone: Serve 4 years at hard labor with the Louisiana Department of Corrections and pay cost of Court. These sentences were to run concurrent with each other and the applicant was to receive credit for time served. The applicant was remanded to the custody of the sheriff. Certificate of Parole, dated 17 November 2010, reflects the applicant was ordered to be paroled and remain on parole until 29 September 2015, insomuch as the applicant agreed to meet the conditions of the parole. Report of Mental Status Evaluation, dated 25 May 2011, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided copies of his VA medical treatment records, which reflect the applicant was treated for: Chronic post-traumatic stress disorder; Depressive Disorder; Opioid Dependence, on agonist therapy; concussion with no loss of consciousness. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; third party letter; VA medical treatment records; administrative separation board proceeding. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he helps other veterans while at the VA and has not been in any trouble. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. 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, the issues and documents submitted with his application were carefully reviewed. The record confirms that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. 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 he was rushed out the Army and did not receive his CIB. However, the applicant's request does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. At the time of the applicant's discharge, he had been sentenced to serve 6 years at hard labor; and, ordered to be on parole until 29 September 2015. The applicant contends he was suffering from undiagnosed PTSD, which affected his behavior and led to his discharge. The applicant contends the VA has treated him for PTSD. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record reflects that on 25 May 2011, the applicant underwent a mental status evaluation, which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends that he had good service, which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. 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 applicant contends that an upgrade of his discharge would allow veterans benefits. However, eligibility for veteran's benefits, 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 third party statement provided with the application spoke of the applicant's behavior after his deployment. The author recognized his change in behavior and how it affects their family; however, the statement did not provide any evidence sufficiently compelling to overcome the presumption of government regularity. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 October 2020, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (TBI/PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions. 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 AR20200002997 6