1. Applicant’s Name: a. Application Date: 27 October 2015 b. Date Received: 4 December 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason change. Additionally, he requests that his discharge from the ARNG be changed to honorable; his status be reinstated back to Reserve status; his rank be reinstated to commensurate to where it would be today, if he had not been released with an other than honorable conditions discharge; and, allowed to continue to be promoted. The applicant seeks relief contending, in effect, he was wounded on 9 April 2004 in Iraq, and was medically evacuated. Upon being assigned to Ft Bragg, he was warned about the commander, MAJ K.C., who was looking for any reason to throw Soldiers out. At the same time, he was seeking an annulment for fraud from his then wife. She made contact with numerous IG offices and finally with MAJ K.C., who immediately took her side. MAJ K.C. maintained contact with the applicant’s ex-wife throughout the separation process. The applicant was diagnosed with PTSD, as well as other physical injuries. He was denied convalescent leave, restricted to the base for months for no reason, and denied the ability to seek medical discharge/retirement due to being held for “administrative action.” The applicant was also told that he could not attend his PTSD clinic group sessions, attend off base religious services, or any other activities. To ensure this, MAJ K.C. had the applicant sign in every four hours, around the clock, to guarantee his whereabouts. This went on for a combined total of a year. The applicant contacted the WAMC IG, Mr. E.L., who launched a very thorough investigation. The applicant wrote letters to the commander WAMC, Troop commander WAMC, IG WAMC, Congressional Representatives, and anyone who he could think of. Despite the IG's finding of undue command influence and a recommendation to transfer to another company, MAJ K.C. denied all of his requests. After going through numerous surgeries and denied leave, he was finally granted convalescence leave only to be called back by a unit NCO stating that MAJ K.C. had declared him AWOL. His PTSD counselor had recommended he be granted leave to clear his mind and allow him exposure to the civilian world in order to try and stop the nightmares and horrible dreams he was having. During this time, he became tired of the maltreatment and dealing with the nightmares and PTSD and attempted to kill himself. It did not work and instead of getting the help he needed, he was threatened with a court-martial because his ex-wife was saying he was not giving her money. When he was served the witness list for his ex-wife, for their annulment hearing, both MAJ K.C. and CPT J.T., who was trial council for the command, were on the list. He took the list to the IG, and he said there was clearly undue command influence going on. Additionally, the fact that he was being denied the ability to REFRAD from voluntary medical hold orders, and constantly receiving unwarranted punitive actions, he again recommended a transfer to another company. MAJ K.C. refused the transfer, saying he would take care of the applicant himself. During Hurricane Katrina, he was requested by the 1st Army, by name, to coordinate surface and subsurface SAR operations. He was ordered to Camp Shelby, and worked directly for Gen H. MAJ K.C. found out the applicant was doing something positive and informed them that he was a criminal, AWOL, and had left the command without permission. Instead of helping to save lives, the applicant was sent back to Ft Bragg into MAJ K.C.'s hands and immediately confined to quarters and ordered to sign in again every few hours around the clock. At the administrative separation board, the applicant’s counsel brought up the witness list with both MAJ K.C. and CPT T on it, and objected to the true impartiality of the board. The board President said that her objections would not do anything to change the outcome of the board. It was also discovered that the board president was in the same ARNG unit as MAJ K.C. and that in her opinion, the decision had already been made before the board commenced. The applicant is currently in the process of going through disability proceedings with the VA. He was diagnosed with PTSD as a result of his service in Iraq. The medications he was using, lack of sleep, nightmares and the inability to transition back to a non-combat life, contributed to the outcome of his time on Active Duty. MAJ K.C. made the decision not to allow him to REFRAD on his terms or to be able to go through the medical separation process. He was in the top of his parachute rigger in 2008, deployed for a second time in 2008, and served in Special Operations honorably in the Reserve until 2009. He reenlisted in 2010, but was discharged because he was told he was not eligible without a waiver after his other than honorable discharge in 2005. Per the Board's Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health conditions for the offenses. The Active Duty electronic medical records were reviewed and revealed no diagnoses or history of PTSD; however, the applicant provided paper record with diagnosis PTSD and Dysthymia in 2004. Electronic medical records indicated a diagnosis of Adjustment Disorder with Anxiety in 2005 with use of medication for sleep, depression and anxiety. VA Medical records also indicate a 2016 diagnosis of PTSD. Despite the in-service and post-service diagnoses, these behavioral health conditions during the time period of misconduct do not explain or directly mitigate his pattern of misconduct. Medical note, dated 13 September 2005, indicated the applicant was stressed out over conflicts with his commander. He believed he was being falsely accused of being AWOL and that the Command was trying to give him a dishonorable discharge because of efforts to get an annulment from his wife. Medical note, dated 20 September 2005, indicated the applicant had a history of questionable absences, narcissistic personality traits, and had difficulty seeing the connection between his behaviors and trouble it brings him. In a personal appearance hearing conducted at Warner Robins, GA on 15 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, the circumstances surrounding his discharge (i.e. arbitrary and capricious actions by the command), and his personal testimony mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, change to the narrative reason for separation to Misconduct (Minor Infraction), AR 635-200, Chapter 14-12a, and separation code changed to JKN. No change to RE-Code. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 3 November 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 August 2005 (2) Basis for Separation: The applicant was informed of the following reasons: AWOL (13 July 2004 to 16 July 2004) and received an Article 15 for the offense; received a second Article 15 for wrongfully stealing and cashing a money order of a value of about $519.00, dishonorably failed to pay just debt to the Army Emergency Relief in the amount of $2,809.00; altered an official document with the intent to deceive, and falsely represented himself as a Marine Corps Sergeant; and, had a number of other incidents that had subjected him to punitive action, with an under other than honorable conditions discharge. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 27 September 2005, the applicant was notified to appear before an administrative separation board and advised of his rights. On 18 October 2005, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 26 October 2005, 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: 26 October 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: OAD, 16 January 2004 / 2 years b. Age at Enlistment/Education/GT Score: 31 / HS Graduate / 120 c. Highest Grade Achieved/MOS/Total Service: E-4 / 11B10, Infantryman / 2 years, 8 months, 15 days d. Prior Service/Characterizations: USMC, 19 June 1990 to 2 October 1991 / UOTH ARNG, 12 August 2002 to 13 November 2002 / NA IADT, 14 November 2002 to 3 April 2003 / NIF ARNG, 4 April 2003 to 12 January 2004 / HD USARCG, 13 January 2004 to 15 January 2004 / NA e. Overseas Service/Combat Service: SWA / Iraq (3 March 2004 to 11 April 2004) f. Awards and Decorations: NDSM-2, ASR, ARFRMM, GWOTSM, ICM g. Performance Ratings: NA h. Disciplinary Action(s)/Evidentiary Record: FG Article 15, dated 26 October 2004, for being AWOL (13 to 16 July 2004) and altered a DA Form 31, then known by him to be false, with the intent to deceive (24 June 2004 to 13 July 2004). The punishment consisted of a reduction to E-3, forfeiture of $349.00 pay, and extra duty for 30 days. FG Article 15, dated 26 July 2005, wrongfully stole and cashed a money order of a value of about $519.30, the property of an individual (4 December 2004), dishonorably failed to pay said debt in the amount of $2809.90 (2 February 2004 to 1 June 2005). The punishment consisted of a reduction to E-2 (suspended); forfeiture of $692.00 pay (suspended); and, extra duty for 30 days. Numerous Developmental Counseling Forms, dated between 5 January 2005 and 25 October 2005, for notification of intent to separate from service; disobeying a direct order; intent to retain on active duty beyond ETS; order to pay BAH to spouse; revocation of pass privileges; order to produce cell phone bill; recommendation for UCMJ action; financial obligations to the Army Emergency Relief fund; failure to pay BAH; and, restriction. i. Lost Time / Mode of Return: 4 days (AWOL, 13 July 2004 to 16 July 2004) / Unknown j. Diagnosed PTSD/TBI/Behavioral Health: The applicant provided an extract of his active duty medical records, dated 16 August 2004, which reflects the applicant was diagnosed with (Axis I) PTSD and Dysthymia. VA medical records, dated 8 March 2016, reflect the applicant was diagnosed with PTSD, chronic. 5. APPLICANT-PROVIDED EVIDENCE: Online application with listed enclosures and DD Form 149. 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. Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. Army Regulation 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Pattern of Misconduct. 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 under other than honorable conditions discharge to honorable and a narrative reason change. The applicant’s 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 her 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. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The requests that his discharge from the ARNG be changed to honorable. Based upon a review of the applicant’s service record and the supporting documents submitted with his application, it does not appear that he made a request through his state Adjutant General. The applicant must first exhaust lower level administrative remedies before appealing to the ADRB. The applicant requests reinstatement in the Reserves; his rank be reinstated commensurate to where it would be today, if he had not been released with an other than honorable conditions discharge; and, allowed to continue to be promoted. However, the applicant’s requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends that he was harassed and or discriminated by members of his chain of command; however, he had many legitimate avenues through which to obtain assistance or relief. The record shows the applicant’s counsel presented this argument at the time of the separation proceedings and was available to the administrative separation board and the separation authority. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. However, 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 character of the applicant’s discharge is commensurate with his overall service record. The applicant’s service record contains documentation that supports a diagnosis of in service PTSD; 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 record is void of a mental status evaluation. It appears the applicant’s chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong. Further, there are many Soldiers with the same condition that completed their service successfully. The applicant contends he should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Further, on 14 October 2005, the applicant requested release from active duty due to ETS. The applicant indicated that he was advised of his rights and advantages as well as the consequences of not staying on active duty for the purposes of completing hospital care and/or physical disability evaluation. 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 the following additional documents: Developmental counseling forms Report of Mental Status Evaluation form Medical documents Report of Unfavorable Personnel Action (Flag) form Orders 08-158-00001, dated 6 June 2008 Yahoo Mail, dates 9 January 2006 Transmittal Record, dated 3 August 2005 Sworn Statement, dated 5 May 2005 Medical record for operation, dated 19 June 2004 Orders 133-01, dated 12 May 2004 Statement of Medical Examination and Duty Status, undated Orders 118-004, dated 27 April 2004 Memorandum for Record, dated 2 November 2010 AKO email, 5 October 2010 Notification of Separation Proceedings, dated 18 August 2010 Commander’s Report for Separation memorandum, dated 25 August 2010 Memorandum for Separation Authority, dated 8 September 2010 State of Florida, County of Miami-Dade Affidavit, dated 19 August 2010 USPS Certified Mail Receipt, date stamp 19 August 2010 USPS Forwarding Time Expired Receipt b. The applicant presented no additional contentions. c. Witness(es)/Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Warner Robins, GA on 15 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, the circumstances surrounding his discharge (i.e. arbitrary and capricious actions by the command), and his personal testimony mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, change to the narrative reason for separation to Misconduct (Minor Infraction), AR 635-200, Chapter 14-12a, and separation code changed to JKN. No change to RE-Code. 11. BOARD ACTION DIRECTED: a. Issue a NGB Form 22: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change SPD/RE Code to: JKN, AR 635-200, Chapter 14-12a No change to RE-Code 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 AR20150018572 1