AR20160008602

1. Applicants Name:

a. Application Date: 11 April 2016

b. Date Received: 22 April 2016

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions discharge) to honorable and a change to the narrative reason for his discharge. The applicant seeks relief contending, in pertinent part and in effect, according to AR 135-178, paragraph 2-9(a)2(d), An honorable characterization may be awarded when disqualifying entries in the Soldiers military record are outweighed by subsequent honorable and faithful service over a greater period of time during the current term of service. His NCOERs rendered during the time period of August 2008 thru July 2012, time served in support of OIF, time period of his advancement in rank and lateral transfers, his service schools, and all his awards and recognitions should be considered by the Board. He was also diagnosed with PTSD by VA as a service-connected injury stemming from his combat tours in support of OIF.

Per the Board’s Medical Officer, based on the information available for review at the time, the applicant had a behavioral health condition which was partially mitigating for some of the offenses which led to his discharge from the Army. The applicant has been diagnosed with PTSD by the VA. His military medical records also indicate the presence of PTSD symptoms. PTSD is often associated with the use of substances to self-medicate. As such, the PTSD would be considered mitigating for the offense of wrongfully using marijuana. It would not be considered mitigating for the offense of disobeying a lawful order or making two false statements. Both the military and the VA electronic medical records were reviewed.

In a personal appearance hearing conducted at Arlington, VA on 7 November 2016, and by a
5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, to include his combat service, his personal testimony, post service accomplishments, and the circumstances surrounding his discharge (i.e. life stressors and in-service diagnosis of OBH) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 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 / General (Under Honorable Conditions)

b. Date of Discharge: 16 July 2012

c. Separation Facts:
(1) DD Form 458 (Charge Sheet):

On 6 March 2012, the applicant was charged with violating Article112a, UCMJ, for wrongfully using marijuana between 10 November 2011 and 10 December 2011.

On 7 May 2012, the applicant was additionally charged with the following:

Additional Charge I: violation of Article92, UCMJ, for disobeying a lawful order on
8April 2012, by wrongfully possessing an aggressive or potentially aggressive breed of dog.

Additional Charge II: violation of Article 107, UCMJ, two specifications of making false
official statements on 18 April 2012.

(2) Legal Consultation Date: 26 June 2012

(3) Basis for Separation: Pursuant to the applicants 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: 27 June 2012 / Under Other Than Honorable Conditions

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 30 October 2007 / 6 years

b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 111

c. Highest Grade Achieved / MOS / Total Service: E-5 / 92W10, 2S Water Treatment Specialist / 11 years, 6 days

d. Prior Service / Characterizations: RA (11 July 2001 to 22 July 2004) / HD
RA (23 July 2004 to 29 October 2007) / HD

e. Overseas Service / Combat Service: SWA / Iraq (2 April 2003 to 1 July 2004, 16October 2005 to 28 October 2006, and 28 April 2008 to 16 July 2009)

f. Awards and Decorations: ARCOM-3, AAM-5, AGCM-3, NDSM, ICM-4CS, GWOTEM, NCOPDR, ASR, OSR-3

g. Performance Ratings:1 August 2008 thru 31 July 2009, Among the Best
1 August 2009 thru 31 July 2010, Among the Best
1 August 2010 thru 8 June 2011, Among the Best
9 June 2011 thru 8 June 2012, Marginal (Relief for Cause)

h. Disciplinary Action(s) / Evidentiary Record:

Two Charge Sheets described at the preceding paragraph 3c(1).

Discharge Orders, dated 28 June 2012
i. Lost Time / Mode of Return: None

j. Diagnosed PTSD / TBI / Behavioral Health: The applicants submitted evidence: VA decision letter, dated 18 February 2016, shows the applicant was granted a 50 percent service-connected disability for PTSD.

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; and VA letter, dated
18 February 2016.

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 individuals 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. 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.

Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members discharges.

Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre-existing conditions which are determined not to have been incurred or aggravated while in military service.

Conditions documented in the 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 PTSD or PTSD related conditions 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 under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor 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. Correction Boards will also exercise caution 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 general (under honorable conditions discharge) to honorable and a change to the narrative reason for his discharge. The applicants 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, AR635-200, 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 discharge by the separation authority.

The applicant referenced AR 135-178 (Enlisted Administrative Separations); however, the regulation is applicable to Army National Guard and Army Reserve enlisted Soldiers, and not Regular Army (RA) Soldiers who are on active duty. Army Regulation 635-200 sets forth the basic authority for the separation of RA enlisted Soldiers.

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 complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service.

The applicant contends he was diagnosed with PTSD by VA for his service-connected injury stemming from his combat tours in support of OIF. A careful review of the available record and the applicant’s documentary evidence confirms the applicant’s behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms. 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.

The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. 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.

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 documents and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted no additional documents or contentions.

b. Witness(es) / Observer(s): None

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on
7 November 2016, and by a 5-0 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, to include his combat service, his personal testimony, post service accomplishments, and the circumstances surrounding his discharge (i.e. life stressors and in-service diagnosis of OBH) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214: Yes

b. Change Characterization to: Honorable

c. Change Reason to: Misconduct (Minor Infractions)

d. Change SPD / RE Code to: JKN / RE-Code 3

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

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
AR20160008602

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