AR20180000413

1. Applicant’s Name:

a. Application Date: 9 October 2017

b. Date Received: 19 December 2017

c. Counsel:

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an
upgrade of his under other than honorable conditions discharge to honorable. The applicant
seeks relief contending, in effect, the Army characterizes the applicant’s service during Operation
Iraqi Freedom as meritorious and awarded him the Army Commendation Medal (ARCOM) for his
outstanding dedication to duty during combat operations. He was awarded a second ARCOM for
demonstrating bravery by personally engaging the enemy during a 37 minute ambush allowing all
forces to fight through the attack. Because of the applicant’s actions, men are alive today.

Counsel states, while the applicant was on Rest and Recuperation (R & R) leave, he was
involved in an altercation and received a civilian charge, which resulted in his discharge with a
less than honorable characterization of service. He was charged with a felony assault, which
the prosecutor stated that although the applicant did not start the fight, he determined that the
applicant carried his self-defense too far. As a result, the applicant served a few months at the
Hutchinson Kansas Correctional Center.

While at the correctional center, the applicant was diagnosed with anxiety symptoms concurrent
with Post Traumatic Stress Disorder and personality change due to Traumatic Brain Disorder,
aggressive type. Counsel, provides evidence of these diagnosis for the Board’s consideration.
Counsel believes that Mr. X, VA in Kansas City, Missouri also forwarded copies the applicant’s
personal Army records. Counsel states, the applicant could benefit from receiving medical
treatment for these disorders, unfortunately he has not received military benefits due to the
“other than honorable discharge,” even though applicant’s service was indeed “honorable.”
Counsel states, that the Army was probably not aware of these medical diagnoses which
contributed to the applicant’s civilian charge. The applicant’s awards confirm and testify to his
commendable service as a combat veteran. Counsel states, it was the applicant’s PTSD and
Traumatic Brain Injury that he was suffering from when he came home for R & R without a
transitional process to civilian life, which affected his behavior.

The applicant served faithfully to the Army’s Core Values during his 26 months in the Army and
now he desires to move forward. He admits that he needs the Veteran’s Medical Center
Services to help him in this complex process as well as with other benefits that he earned for his
honorable service. He desires to focus on the future and to move beyond the anguish of war,
the loss of buddies and the war that plays over in his head and his other service-related issues.
He has not been able to support his daughter and expresses his desire to be the father she
deserves. An upgrade of his discharge would help the applicant redefine his life and is
instrumental in rebuilding his life and overcoming the challenges of his war related conditions.

Per the Board’s Medical Officer, based on the information available for review at the time to
include the military electronic medical record, the applicant had a medical or behavioral health
condition that was partially mitigating for the offenses which led to his separation from the Army.
A review of electronic military medical records found that SM was seen only once by behavioral
health on 9 April 2008 for a mental status evaluation as part of his separation. No diagnosis was
given and the misconduct or the events that led to civil conviction were not discussed in medical
note. An affidavit dated 29 January 2008 indicated that on 25 December 2007 indicated SM
made suicidal statements and went into a bedroom where he broke a window and put holes in
the wall. An undated letter from a social worker indicated SM was diagnosed with PTSD
stemming from combat related experiences. While incarcerated SM received a court ordered
mental health evaluation dated 21 November 2008 and was diagnosed with PTSD and
Personality Change Due to TBI-Aggressive Type. At the time of the evaluation, SM reported
problems with anxiety since Iraq and several traumatic experiences involving bomb detonations,
concussions, anger, sleep problems, nightmares, hypervigilance and intense headaches.
In summary, although SM has a court-ordered mental health evaluation diagnosing him with
PTSD, his military medical records are void of any behavioral health diagnoses. PTSD can be
associated with irritability, anger, and avoidance behaviors such as AWOL; however, the events
that precipitated the aggravated assault during R&R are unknown, therefore it is difficult to
render a decision regarding mitigation.

In a records review conducted at Arlington, VA on 28 March 2018, and by a 5-0 vote, the Board
determined that the characterization of service was inequitable based on the applicant’s quality
of service to include combat service, valor in combat, and the circumstances surrounding the
discharge (i.e. in-service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the
form of an upgrade to the characterization of service to general under honorable conditions.
The Board determined the narrative reason, SPD code and RE code were proper and equitable
and voted not to change them.

(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-3 / Under Other Than Honorable Conditions

b. Date of Discharge: 25 August 2008

c. Separation Facts:

(1) Date of Notification of Intent to Separate: 15 April 2008

(2) Basis for Separation: The applicant was informed of the following reasons: He
was convicted of Aggravated Battery, intentionally causing bodily harm, and was sentenced to
11 months in confinement. Additionally, he was convicted of Criminal Damage less than
$1000.00 and sentenced to 120 days of confinement.

(3) Recommended Characterization: General (Under Honorable Conditions)

(4) Legal Consultation Date: 22 April 2008

(5) Administrative Separation Board: On 19 June 2008, the applicant was notified to
appear before an administrative separation board and advised of his rights.

On 24 July 2008, the administrative separation board convened and the applicant’s counsel
appeared in his absence. The board recommended the applicant’s discharge with
characterization of service of under other than honorable conditions discharge.

On 13 August 2008, the separation authority approved the findings and recommendations of the
administrative separation board and directed the applicant’s discharge with a characterization of
service of under other than honorable conditions.

(6) Separation Decision Date / Characterization: 13 August 2008 / Under Other
Than Honorable Conditions

4. SERVICE DETAILS:

a. Date / Period of Enlistment: 1 February 2006 / 3 years, 16 weeks

b. Age at Enlistment / Education / GT Score: 18 / GED / 105

c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B1P, Combat Engineer /
1 year, 7 months, 23 days

d. Prior Service / Characterizations: None

e. Overseas Service / Combat Service: SWA / Iraq (22 September 2006 – 6 June 2007)

f. Awards and Decorations: ARCOM-V-1, ARCOM-1, ICM, NDSM, GWOTSM, ASR,
OSR

g. Performance Ratings: NA

h. Disciplinary Action(s) / Evidentiary Record:

Johnson County, District Court of Kansas, court document, dated 28 October 2007, reflects the
applicant was convicted of Aggravated Battery. The applicant was sentenced to 11 months of
confinement and 24 months of probation.

Johnson County, District Court of Kansas, Court document, dated 29 January 2008, reflects the
applicant was charged with criminal damage to property less than $1000.

Four Personnel Action forms, reflect the applicant’s duty status changed as follows:

From “Present for Duty (PDY)” to “Confined by Civil Authorities (CCA),”effective 7 June
2007;
From “CCA” to “Absent Without Leave (AWOL) – CCA,” effective 1 November 2007;
From “AWOL – CCA” to “PDY,” effective 1 April 2008;
From “PDY” to “AWOL,” effective 18 July 2008; and,
From “AWOL” to “AWOL – CCA,” 8 August 2008.

i. Lost Time / Mode of Return: 336 days (CCA, 7 June 2007 – 31 March 2008) /
Released from Confinement
(AWOL, 18 July 2008 – 25 August 2008) /
Surrendered to Military Authorities

j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided treatment records
from the Correct Care Solutions, Kansas Department of Corrections Mental Health Intake, dated
21 November 2008, which reflects the applicant was diagnosed with PTSD and a Personality
Change Due to TBI, Aggressive Type (Axis I).

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; a self-authored statement, a letter from
counsel; DD Form 214; copies of his military awards; photographs; and, medical treatment
records.

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 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, through counsel, 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.

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 confined by civilian authorities for 17 days. The applicant had been previously
sentenced to 11 months of confinement and 24 months of probation.

The applicant contends the he has been diagnosed post-service for Post-Traumatic Stress
Disorder (PTSD). He contends, his undiagnosed PTSD, affected his behavior and ultimately led
to his discharge. 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 applicant’s service record is void of a mental status evaluation. It appears the applicant’s
chain of command determined that he knew the difference between what was right and wrong.

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 applicant contends that an upgrade of his discharge would allow him veteran’s benefits.
However, eligibility for veteran’s benefits to include medical and educational benefits under the
Post-9/11 or Montgomery GI Bill do 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 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 March 2018,
and by a 5-0 vote, the Board determined that the characterization of service was inequitable
based on the applicant’s quality of service to include combat service, valor in combat, and the
circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD). Accordingly, the
Board voted to grant relief in the form of an upgrade to the characterization of service to general
under honorable conditions. The Board determined the narrative reason, SPD code and RE
code were proper and equitable and voted not to change them.

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 Code to: No Change

f. Change 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
AR20180000413
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