1. Applicant's Name: a. Application Date: 17 January 2020 b. Date Received: 18 January 2010 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under honorable conditions to honorable and a change to the narrative reason for separation to Secretarial Authority. The applicant through counsel seeks relief contending, in effect, the following issues: Issue I, his under other than honorable conditions discharge is inequitable because he had, at the time of his discharge, an undiagnosed mental health condition that he developed as a result of a combat deployment, which should mitigate the prejudicial characterization of his discharge. Issue II, his under other than honorable conditions discharge is inequitable because his undiagnosed mental health condition explains the changes in his behavior manifesting in the misconduct underlying his administrative separation from the Army. Issue III, his acceptance of a Chapter 10 discharge is inequitable given the subsequent change in Army policy requiring a behavioral health evaluation for any Soldier pending administrative separation with an under other than honorable conditions discharge who deployed in support of a contingency operation during the previous 24 months. Issue IV, he deserves clemency-type relief given that the collateral consequences of his under other than honorable conditions discharge has been disproportionately harsh in relation to the minor and nonviolent misconduct that led to his discharge. Issue V, he was suffering from a mental health condition, subsequently confirmed by a psychologist that he was suffering from PTSD. Issue VI, his discharge impedes his eligibility for the Montgomery G.I. Bill and other forms of educational assistance, home and other loans from the VA, as well as Civil Service preference when applying for a job with a federal agency. Issue VII, he self-medicated to deal with issues he was not willing to admit were there. In a records review conducted at Arlington, VA on _ ___ 2020, and by a __-__ vote, the Board denied the request upon finding the separation was both proper and equitable. (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: 19 November 2008 c. Separation Facts: Yes (1) Date Charges Were Preferred: 21 October 2008 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which indicates on 27 October 2008, the applicant was charged with, without authority absented himself from his unit x2 (21 August 2008 to 8 September 2008 and 24 September 2008 to 6 October 2008); he was disrespectful in deportment toward CSM D., a noncommissioned officer, who was then in the execution of his office, by failing to remain stationary while addressing him, possessing an alcoholic beverage while addressing him and using language such as "fuck this shit" or words to that effect (17 October 2008); without proper authority, willfully damage a wall, by kicking a door into it, of a value of about $100, military property of the United States, the amount of said damage being in the sum of about $100 (17 October 2008); wrongfully use methamphetamines and amphetamines, Schedule II controlled substances between (3 July 2008 and 8 July 2008); and having knowledge of a lawful order issued by CPT S.W., to provide a sample of the accused's urine in a provided container, an order which it was his duty to obey, did fail to obey the same by placing a substance other than his urine in the container (12 August 2008). (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: NIF, the applicant consulted with legal counsel and requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 November 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 June 2006 / 4 years / Moral Waiver / 13 May 2006 b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21E10, Heavy Construction Equipment Repairer / 2 years, 4 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, 20 December 2006 to 7 November 2007 f. Awards and Decorations: ARCOM, NDSM, ICM-CS, GWOTSM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 26 March 2008, revealed the applicant was under investigation for driving under the influence and speeding, off post. Military Police Report, dated 25 May 2008, relates the applicant was under investigation for driving under the influence, operating on suspended / revoked operator's license, and failure to surrender revoked operator's license, off post. An administrative General Officer Memorandum of Reprimand (GOMOR), dated 20 June 2008, shows on 21 May 2008, the applicant pled guilty to driving under the influence of alcohol on 23 February 2008 and again on 18 May 2008. Military Police Report, dated 18 October 2008, indicates the applicant was under investigation for being drunk and disorderly, wrongfully damaging Government of property, disrespect to a noncommissioned officer, and drunk on duty, unable to perform duties, on post. i. Lost Time / Mode of Return: AWOL x2 for 19 days, 21 August 2008 to 8 September 2008 for 18 days and 25 September 2008 to 25 September 2008 for 1 day; returned to unit on both periods. Pre-trial confinement for 29 days, 19 October 2008 to 17 November 2008. Total lost time 47 days. j. Diagnosed PTSD / TBI / Behavioral Health: Centegra Health Systems documents, dated 29 September 2016, 19 October 2016, 17 November 2016, 30 December 2016, 27 January 2017, 10 February 2017, 24 February 2017, 21 March 2017, 11 April 2017, 25 April 2017, 13 July 2017, 3 August 2017, 17 August 2017, 31 August 2017, 16 November 2017, 29 November 2017, 25 April 2018, 11 May 2018, 21 May 2018, 2 July 2018, 16 July 2018, 30 July 2018, 18 October 2018, 29 November 2018, 12 December 2018, 22 January 2019, 21 February 2019, and 19 March 2019, revealed the applicant was diagnosed with PTSD and major depressive disorder, recurrent, moderate. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); continuation of DD Form 293 (11 pages); Tab A, letter from Z. S., Psy.D., Centegra Health System, Tab B, Memorandum For Secretaries of the Military Departments, SUBJECT: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment ("Kurta Memo", five pages); Tab C, Enlisted Record Brief; Tab D, Applicant's Declaration (11 pages); Tab E, GOMOR Packet (four pages); Tab F, DD Form 458, Charge Sheet (three pages); Tab G, Memorandum For Commander, U.S. Army Armor Center and Fort Knox, Fort Knox, KY 40121, Subject: Discharge in Lieu of Trial by Courts-Martial (two pages); Tab H, Memorandum For Adjutant General, Attn: Transition Center, Fort Knox, Kentucky 40121; Tab I, DD Form 214, Certificate of Release or Discharge From Active Duty; Tab J, Memorandum For Commander, USAARMC and Fort Knox, from CPT T.S.M. (TDS Attorney Memo, three pages); Tab K, Excerpts from AR 635-200, Active Duty Enlisted Administrative Separations (three pages); Tab L, ALARACT 070 / 2018, Enlisted Administrative Separation Processing Guidance, Final Medical Disposition (three pages); Tab M, Memorandum For Secretaries of the Military Departments, Subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations dated (Willkie Memo, four pages); and Tab N, applicant's medical records (117 pages). 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 honorable conditions to honorable and a change to the narrative reason for separation to Secretarial Authority. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record document acts of significant achievement and valor to include combat; 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 to Secretarial Authority. 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, in effect, the following issues: Issue I, his under other than honorable conditions discharge is inequitable because he had, at the time of his discharge, an undiagnosed mental health condition that he developed as a result of a combat deployment, which should mitigate the prejudicial characterization of his discharge. The service record contains no evidence of any undiagnosed mental health condition while on active duty diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Issue II, his under other than honorable conditions discharge is inequitable because his undiagnosed mental health condition explains the changes in his behavior manifesting in the misconduct underlying his administrative separation from the Army. 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 any evidence to support the contention that his undiagnosed mental health condition was the underlying factor to his misconduct. Issue III, his acceptance of a Chapter 10 discharge is inequitable given the subsequent change in Army policy requiring a behavioral health evaluation for any Soldier pending administrative separation with an under other than honorable conditions discharge who deployed in support of a contingency operation during the previous 24 months. 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 this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was inequitable. Further, Alaract 070 / 2018, dated 15 August 2018, Subject: Required Medical Examination Guidance for Soldiers Processed for Administrative Separation Under Conditions Other Than Honorable characterization of service. This Alaract came into effect after the applicant was discharged from Service and therefore this message does not apply to his case. AR 635-200, paragraph 10-6, states a medical examination is not required but may be requested by the Soldier under AR 40-501, Chapter 8. The record does no demonstrate that the applicant requested a medical or mental examination at the time of his separation. Issue IV, he deserves clemency-type relief given that the collateral consequences of his under other than honorable conditions discharge was disproportionately harsh in relation to the minor and nonviolent misconduct that led to his 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 characterization of the applicant's discharge was commensurate with his overall service record. Issue V, he was suffering from a mental health condition, subsequently confirmed by a psychologist that he was suffering from PTSD. The Centegra Health Systems documents are acknowledged, which exhibits the applicant was diagnosed with PTSD and a major depressive disorder, recurrent, moderate. Issue VI, his discharge impedes his eligibility for the Montgomery G.I. Bill and other forms of educational assistance, home and other loans from the VA, as well as Civil Service preference when applying for a job with a federal agency. Eligibility for veteran's 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. Issue VII, he self-medicated to deal with issues he was not willing to admit were there. The record of evidence does not demonstrate that the applicant sought relief through his command or the numerous Army community services like the Chaplain, Community Counseling Center and other medical resources available to all Soldiers. 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 DISCUSSION: Issue I, is rejected. The applicant through counsel states his under other than honorable conditions discharge is inequitable because he had, at the time of his discharge, an undiagnosed mental health condition that he developed as a result of a combat deployment, which should mitigate the prejudicial characterization of his discharge. The service record contains no evidence of any undiagnosed mental health condition while on active duty diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. Issue II, is rejected. The applicant through counsel states his under other than honorable conditions discharge is inequitable because his undiagnosed mental health condition explains the changes in his behavior manifesting in the misconduct underlying his administrative separation from the Army. 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 any evidence to support the contention that his undiagnosed mental health condition was the underlying factor to his misconduct. Issue III, is rejected. The applicant through counsel states his acceptance of a Chapter 10 discharge is inequitable given the subsequent change in Army policy requiring a behavioral health evaluation for any Soldier pending administrative separation with an under other than honorable conditions discharge who deployed in support of a contingency operation during the previous 24 months. 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 this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was inequitable. Further, Alaract 070 / 2018, dated 15 August 2018, Subject: Required Medical Examination Guidance for Soldiers Processed for Administrative Separation Under Conditions Other Than Honorable characterization of service. This Alaract came into effect after the applicant was discharged from Service and therefore this message does not apply to his case. AR 635-200, paragraph 10-6, states a medical examination is not required but may be requested by the Soldier under AR 40-501, Chapter 8. The record does no demonstrate that the applicant requested a medical or mental medical examination. Issue IV, is rejected. The applicant through counsel states he deserves clemency-type relief given that the collateral consequences of his under other than honorable conditions discharge was disproportionately harsh in relation to the minor and nonviolent misconduct that led to his 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 characterization of the applicant's discharge was commensurate with his overall service record. Issue V, is accepted. The Board found that the applicant was suffering from a mental health condition post service, subsequently confirmed by a psychologist that he was suffering from PTSD. The Centegra Health Systems documents are acknowledged, which exhibits the applicant was diagnosed with PTSD and major depressive disorder, recurrent, moderate. Issue VI, is rejected. The applicant through counsel states his discharge impedes his eligibility for the Montgomery G.I. Bill and other forms of educational assistance, home and other loans from the VA, as well as Civil Service preference when applying for a job with a federal agency. Eligibility for veteran's 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. Issue VII, rejected. The applicant through counsel states he self-medicated to deal with issues he was not willing to admit were there. The record of evidence does not demonstrate that the applicant sought relief through his command or the numerous Army community services like the Chaplain, Community Counseling Center and other medical resources available to all Soldiers. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 13 November 2020, and by a 4-1 vote, the Board accepted issue V and determined that the discharge was inequitable based on the applicant's length and quality of service, to include his combat service, and the circumstances surrounding the discharge (i.e., civilian service-connected PTSD diagnosis). Therefore, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general under honorable conditions. However, the board found that the narrative reason for separation was both proper and equitable and voted not to change it. 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 d. 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 AR20200006789 1