1. Applicant's Name: a. Application Date: 28 March 2016 b. Date Received: 31 March 2016 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 change to the narrative reason for separation. The applicant seeks relief contending, in effect, his discharge and characterization of service was improper and inequitable. There was not sufficient evidence to justify chaptering him from the Army. He was treated unfairly and judged unfairly at his board. The applicant states that when he returned from training in August 2009 his wife and children were gone because they went back to her hometown in Georgia. In December 2009, he drove to Georgia to visit his wife, children, and in-laws. His wife, who was living with another man, told the applicant that she could not live in New York and wanted a divorce when he returned from his deployment. After being depressed and begging his wife for several months to better their marriage, he gave up and eventually met Ms. S. 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. In a records review conducted at Arlington, VA on 19 May 2017, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service, and circumstances surrounding his discharge (i.e. despite no medical mitigation, give consideration of TBI), and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to general (under honorable conditions). The Board determined the reason for discharge was proper and equitable and voted not to change it. (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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 9 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 October 2013 (2) Basis for Separation: The applicant was informed of the following reasons: Engaged in a pattern of misconduct to include, but not limited to: violating a court order of protection (on or about 14 July 2011 and again on 8 August 2013); assaulted Mrs. S, as well as destroyed private property in the form of a lamp, a stepping stool and a drum stool (3 January 2013); assaulted Mrs. D by pushing her (23 January 2011); and, assaulted Mrs. D again, (5 June 2011), by pushing her against a wall and head butting her in front of her minor child. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 November 2013 (5) Administrative Separation Board: Conditionally waived, 14 November 2013, contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions) discharge. Documents in the applicant's service record reflect an Administrative Separation Board was convened on 6 May 2014; however, the Board proceedings and/or findings are not in the record. (6) Separation Decision Date / Characterization: 2 June 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 October 2010 / 4 years b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91J10, Quartermaster and Chemical Equipment Repairer / 11 years, 6 months, 3 days d. Prior Service / Characterizations: RA, 7 January 2003 to 7 April 2005 / HD RA, 8 April 2005 to 8 October 2010 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (20 November 2005 to 26 September 2006 and 14 October 2007 to 25 November 2008); Afghanistan (30 January 2010 to 30 January 2011) f. Awards and Decorations: ACM-CS, ICM-3CS, ARCOM-4, AAM-3, JMUA, MUC, AGCM-3, NDSM, GWOTSM, KDSM, ASR, OSR-4, NATOMDL g. Performance Ratings: 10 April 2010 thru 9 April 2011, Fully Capable 10 April 2011 thru 9 April 2012, Fully Capable 9 April 2012 thru 9 January 2013, Fully Capable 10 January 2013 thru 9 January 2014, Marginal h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 6 June 2011, reflects the applicant was apprehended for criminal contempt 2nd Degree NYPL (civil) (off post) and harassment 2nd Degree NYPL (civil) (off post). Military Police Report, dated 4 January 2013, reflects the applicant was apprehended for criminal mischief 4th Degree NYPL (civil) (off post). Military Police Report, dated 8 August 2013, reflects the applicant was apprehended for criminal contempt 2nd Degree NYPL (civil) (off post). Numerous Developmental Counseling Forms for missed appointments; failure to provide adequate financial support to family members; violating protection order and arrest; failing to report to his appointed place of duty at time prescribed; bar to reenlistment; failing to pay debts; criminal mischief; patterns of misconduct; arrested for criminal contempt and harassment; and, reporting late to duty. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 13 September 2013, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with (Axis I) Adjustment Disorder with Anxiety and Depressed Mood, by history; Other Specified Family Circumstances, by history. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 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 change to the narrative reason for separation. 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 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 be retained on active duty. The applicant contends the narrative reason for the discharge should be changed because he was unjustly discharged. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), 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 applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends the discharge was unjust because at his administrative separation board, there was not sufficient evidence to justify chaptering him; therefore, he was treated unfairly. However, 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's service record is void of any administrative separation board proceedings or findings. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, therefore, no determination can be made about the supporting statements the applicant provided. Further, the applicant's numerous negative counseling statements justify a pattern of misconduct. 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 DETERMINATION: In a records review conducted at Arlington, VA on 19 May 2017, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service, and circumstances surrounding his discharge (i.e. despite no medical mitigation, give consideration of TBI), and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade to the characterization of service to general (under honorable conditions). The Board determined the reason for discharge was 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 e. Change SPD/RE Code to: No Change f. Restore (Restoration of) Grade 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 AR20160007145 1