1.	APPLICANT’S NAME:  

	a.	Application Date:  24 November 2014

	b.	Date Received:  28 November 2014

	c.	Representative:  Yes

2.   REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION:  The applicant requests an upgrade from under other than honorable conditions to an honorable discharge and to remove the adverse comments on the DD Form 214.  A Veteran Services Agency director on behalf of the applicant states, in pertinent part and in effect, the applicant’s discharge was wrongful because the command failed to consider his combat-related medical conditions in their determination as the June 2012 incident was rooted in a combat-related medication condition.  The command’s JAG representatives coerced him through fear of consequences into accepting an UOTH discharge.  The character of discharge is disproportionately unfavorable given the circumstances of the incidents and subsequent handling of his case.  The applicant’s discharge presents a grave impact on the availability of his veterans’ medical and benefits needed to address his service-connected injuries.

After carefully examining the applicant’s record of service during the period of enlistment under review, the Board determined the characterization of service was too harsh based on the quality of the applicant’s service, to include his combat service and the circumstances surrounding the discharge, i.e., Post Traumatic Stress Disorder (PTSD).  It is concluded that the other behavioral health issues may have been a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant’s misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant’s service to general, under honorable conditions.  

Accordingly, in a records review conducted at Arlington, VA on 28 August 2015, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined, the reason for the discharge was both proper and equitable, and voted not to change it.  This action entails a restoration to grade E-3/PFC.

	(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:  15 August 2012

	


c.	Separation Facts:  

		(1)	DD Form 458, Charge Sheet:  On 11 June 2012 and 1 May 2012, the applicant was charged with the following during the additional and initial referral of charges, respectively:

	Additional Charge I, violation of Article 128, UCMJ, two specifications of assaulting officer F, who was in the execution of his civilian law enforcement duties on 5 March 2012 (two separate occasions).
	Additional Charge II, Violation of Article 86, UCMJ, two specifications of failing to go to his appointed place of duty at the prescribed time on 12 March 2012 and 13 March 2012.
	Charge I, crossed out.
	Charge II, violation of Article 92, UCMJ, for wrongfully possessing drug paraphernalia in violation of a lawful general order on 5 March 2012.
	Charge III, violation of Article 134, UCMJ, four specifications of endangering the physical health of children under the age of 16 years, Ms. W and Ms. B, by various acts of allowing accumulation of dog feces, and allowing two items of drug paraphernalia to remain within their reach; being disorderly on 5 March 2012; and two specifications of communicating indecent languages to Ms. W and Ms. B.
	Charge IV, violation of Article 86, UCMJ, six specifications of failing to go to his appointed place of duty at the prescribed time on 19 January 2012, 23 January 2012, 24 January 2012, 27 January 2012, 8 February 2012, and 10 February 2012.  

		(2)	Basis for Separation:  The separation was pursuant to the applicant’s request for discharge under the provisions of Chapter 10, In Lieu of Trial by Court-Martial.

		(3)	Recommended Characterization:  Under Other Than Honorable Conditions discharge.

		(4)	Legal Consultation Date:  7 May 2012.

		(5)	Administrative Separation Board:  NA.

		(6)	Separation Decision Date/Characterization:  24 July 2012 / Under Other Than Honorable Conditions discharge.

4.	SERVICE DETAILS:

	a.	Date/Period of Enlistment:  25 February 2010 / 6 years

	b.	Age at Enlistment/Education/GT Score:  19 / GED / 92

	c.	Highest Grade Achieved/MOS/Total Service:  E-4 / 91H10, Track Vehicle Repairer / 4 years, 2 months, 25 days 
  
	d.	Prior Service/Characterizations:  RA (21May 2008-24 February 2010) / HD
  
	e.	Overseas Service/Combat Service:  SWA / Iraq (17 February 2009-3 February 2010)
	f.	Awards and Decorations:  ARCOM; AAM; AGCM; NDSM; ICM-2CS; GWOTSM; ASR; OSR; CAB
  
	g.	Performance Ratings:  None  

	h.	Disciplinary Action(s)/Evidentiary Record:  Two Charge Sheets described at the preceding paragraph 3c(1)
  
	i.	Lost Time:  None
  
	j.	Diagnosed PTSD/TBI/Behavioral Health:  PTSD diagnosis noted in the applicant’s evidence

5.	APPLICANT-PROVIDED EVIDENCE:  A veterans’ services agency director-authored statement on behalf of the applicant; memorandum, dated 3 September 2014, subject; Supplement Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder and its attachment; DD Form 214 for service under current review; emergency nursing and health records, dated 2 November 2009; 3rd ID pre-deployment behavioral health screening, dated 18 November 2009; and VA cover letter, dated 25 November 2014.

6.	POST SERVICE ACCOMPLISHMENTS:  None provided.

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.

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.

8.	DISCUSSION OF ISSUE(S):  The applicant requests an upgrade from under other than honorable conditions to an honorable discharge and to remove the adverse comments on the DD Form 214.  

The applicant’s 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

A Veteran Services Agency director, on behalf of the applicant, seeks relief contending that the applicant’s discharge was wrongful because the command failed to consider his combat-related medical conditions in their determination as the June 2012 incident was rooted in a combat-related medication condition.  The command’s JAG representatives coerced him through fear of consequences into accepting an UOTH discharge.  The character of discharge is disproportionately unfavorable given the circumstances of the incidents and subsequent handling of his case.  The applicant’s discharge presents a grave impact on the availability of his veterans’ medical and benefits needed to address his service-connected injuries. 

The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  Although his record documents acts of significant achievement or valor, they did not support the issuance of an honorable or a general discharge by the separation authority and they do not support an upgrade to an honorable or a general discharge at this late date.  

The applicant’s contentions were carefully considered.  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 may have been unjustly discriminated.  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.  

Army Regulation 635-5-1 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’s service record contains documentation that supports a diagnosis of mental health issues but not a specific diagnosis of PTSD.  A careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  

In view of the foregoing, the Board determined the characterization of service was too harsh.  However, 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 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 SPD/RE Code to:  			No Change

	e.	Restore (Restoration of) Grade to:  	E-3/PFC


Authenticating Official:




COL, US ARMY
Presiding Officer 
Army Discharge Review Board























Legend:
AWOL - Absent Without Leave	GD - General Discharge	NIF - Not in File	SPCM - Special Court Martial 
BCD - Bad Conduct Discharge	HS - High School		OAD - Ordered to Active Duty	SPD - Separation Program Designator
CG - Company Grade Article 15	HD - Honorable Discharge	OMPF - Official Military Personnel File	TBI – Traumatic Brain Injury
CID - Criminal Investigation Division	MP – Military Police	PTSD – Post-Traumatic Stress Disorder	UNC - Uncharacterized Discharge  
ELS – Entry Level Status	IADT – Initial Active Duty Training	RE - Reentry	UOTHC - Under Other Than Honorable Conditions
FG - Field Grade Article 15	NA - Not applicable	SCM - Summary Court Martial	

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE

AR20140020732



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