1. Applicant's Name: a. Application Date: 26 September 2019 b. Date Received: 4 October 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, his discharge was unfair at the time, due to procedural errors, and it is currently unfair. In a separate statement, in pertinent part, the applicant contends that through the course of consolidated events, primarily for a week and a half, have led to his discharge. He has head injury that he never received treatment for. He served his country for almost 11 years. He did not "ride through his service at the minimum" as he was selected for the sniper team, hand-selected for the recon platoon, and then qualified for Special Forces. He currently struggles with employment. He is waiting for an upgrade from VA for compensation for the injuries he sustained in combat operations. Although he survived critical TBI injuries, he was never seen in an inpatient TBI clinic. He was discharged in midst of medical exams, such as three MRIs being due the week after his discharge. His Chapter 10 discharge takes away any TBI/PTSD compensation. His discharge was the result of head injuries and lack of treatment. His record is missing an ARCOM and an AAM. 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; Alcohol Abuse; Alcohol Dependence; Anxiety Disorder, unspecified; Personal hx of TBI mild/moderate; Sleep Disorder, unspecified. The VA has also diagnosed the applicant with Personal h/o TBI, Unspecified Depressive Disorder and Reaction to Severe Stress. The applicant is 100% service connected for PTSD. In summary, the applicant has 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 13 November 2020, and by a 5-0 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 (i.e. in-service diagnosis of TBI and PTSD), and prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (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: 3 July 2019 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 7 June 2019, the applicant was charged with the following: Charge I: Two Specifications of violating Article 86, UCMJ: Specification 1: On divers occasions, between 25 January 2019 and 11 February 2019, the failed to go to his appointed place of duty at the prescribed time, to wit: medical appointments. Specifications 2: On 17 May 2019, the failed to go to his appointed place of duty at the prescribed time, to wit: medical appointments. Charge II: Violation of Article 89, UCMJ. On 18 May 2019, the applicant behaved himself with disrespect towards CPT A.P.M., his superior commissioned officer, by saying to CPT A.P.M., "'You're not even worthy of speaking to me,'" or words to that effect. Charge III: Three Specifications of violating Article 90, UCMJ: Two specifications of disobeying CPT A.P.M. to not consume alcohol on 18 May 2019, and to not leave the Fort Campbell Cantonment area, on 18 May 2019. One specification of disobeying MAJ B.M.E., his superior commissioned officer, to not consume alcohol, on 6 June 2019. Charge IV: Violation of Article 91, UCMJ. On 18 May 2019, the applicant was disrespectful in language towards SFC S.W.S, a superior NCO, by writing, "'Eat dick,'" or words to that effect on DA Form 4856 Developmental Counseling Form. Charge V: Violation of Article 115, UCMJ. On 18 May 2019, the applicant wrongfully communicated to SFC S.W.S, a threat to injure SFC S.W.S.'s reputation. Charge VI: Violation of Article 134, UCMJ. On 16 June 2019, the applicant was drunk and disorderly. (2) Legal Consultation Date: 11 June 2019 (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: 20 June 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 November 2014 / 6 years (NIF; however, ERB shows an ETS date of 18 November 2020) b. Age at Enlistment / Education / GT Score: 19 / GED / 121 c. Highest Grade Achieved / MOS / Total Service: E-6 / 18E3P, 2B SF Commo Sergeant and 11B3P 2B Infantryman / 10 years, 10 months, 13 days d. Prior Service / Characterizations: RA (21 August 2008 to 1 April 2011) / HD RA (2 April 2011 to 18 November 2014) / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (21 June 2010 to 19 May 2011), 20 December 2012 to 22 September 2013), (Syria (6 July 2018 to 8 August 2018) f. Awards and Decorations: ARCOM-2; AAM-3; AGCM-3; NDSM; ACM-2CS; NCOPDR-2; ASR; OSR-3; NATO MDL; MUC; CIB g. Performance Ratings: Three NCOERs rendered during period of service under current review: 2 March 2014 to 1 March 2015, Fully Capable 20 July 2017 to 19 July 2018, Met Standard 20 July 2018 to 20 June 2019, RFC, Did Not Meet Standard h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet with its associated documents (counseling statements and sworn statements) described at the preceding paragraph 3c(1). Report of Mental Status Evaluation, dated 5 March 2019, reflects behavioral health diagnosis of "Alcohol Use Disorder, severe." The evaluation also reports that the applicant's "SUD [Substance Use Disorder] treatment" prognosis was poor. He was determined a residential treatment rehabilitation program failure. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence filed with his DD 149 application contains voluminous medical records: Medical Records at page 102, list medical problems, such as: Alcohol dependence, Anxiety disorder, Personal history of traumatic brain injury; Personal History of Traumatic Brain Injury (TBI; Alcohol use with unspecified alcohol-induced disorder; and Injury Due to War Explosion Improvised Explosive Device. Diagnosis History at page 111, lists Adjustment disorder with anxiety; Alcohol abuse and dependence; Anxiety disorder; Concussion with loss of consciousness of specified duration; and several entries relating to TBI. Same medical records, throughout, expound on TBI and behavioral health issues diagnoses. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 12 May 2020; DD Form 214; Final Decree of Divorce, dated 17 August 2018; AAM certificate, dated 31 January 2019, with its recommendation; email, dated 8 August and 8 September 2018; sworn statement, dated 18 October 2019; sworn statement, dated 15 October 2019; two ARCOM certificates, dated 15 March 2012 to 1 March 2014, and 27 August 2013; AAM certificate, dated 15 June 2010 to 15 June 2011; ARCOM certificate, dated 18 February 2009 to 17 February 2012; AAM certificate, dated 19 August 2012 to 24 August 2012; three Certificates of Achievement; Language Proficiency Questionnaire; counseling statement, dated 14 December 2011; three Service School Academic Evaluation Reports, dated 16 December 2011, 30 March 2017, and 13 August 2014; five Recommendations for Award; six NCOERs; three Permanent Orders, dated 1 March 2011, 21 March 2017, and 6 February 2013 (CIB); LRM Diploma; Air Assault Course Diploma; Airborne Course Diploma; Parachutist Graduate Diploma; Antiterrorism OBC Diploma; Special Operations Combative Program Diploma; Certificate of Graduation (Special Forces Qualification Course); three certificates of training; and ERB. 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 to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. 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 contends the discharge was unfair, because of procedural errors and his discharge was the result of the head injuries he sustained in combat, which he never received treatment for. 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 and a change to the narrative reason for his discharge. The applicant's contentions regarding his behavioral health issues, resulting from the critical injuries, TBI and PTSD, he sustained in combat operations, were carefully considered. A careful review of the applicant's documentary evidence indicates the applicant's behavioral health issues existed and subsequent diagnoses of TBI and PTSD, which the applicant contends 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 and to change the narrative reason for his discharge. The applicant contends that his current separation denies him compensation for his TBI and PTSD medical conditions. However, 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 applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10, is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Insofar as the applicant's contentions relating to missing award information on his DD Form 214, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. However, it is within the purview of the Army Board for Correction of Military Records (ABCMR); therefore, his separate application for correction of military records, DD Form 149, will be forwarded to ABCMR, for their consideration. 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 13 November 2020, and by a 5-0 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 (i.e. in-service diagnosis of TBI and PTSD), and prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / RE-3 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 AR20200006255 4