1. Applicant's Name: a. Application Date: 9 August 2016 b. Date Received: 18 August 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, his misconduct was due to "don't ask," "don't tell". Several members of his unit became aware of him being gay and actively were cruel, unprofessional and hateful; including his company commander and platoon leaders. He should have been discharged under "don't ask," "don't tell" with a fully honorable. Per the Board's Medical Officer, based on the information available for review at the time, the applicant's AHLTA diagnoses are Adjustment Disorder with Anxiety and Depressed Mood, Adjustment Disorder with Anxious Mood, Adjustment Disorder with Depressed Mood, Adjustment Disorder with Disturbance of Emotions and Conduct, Adjustment Disorder with Mixed Emotional Features, Alcohol Abuse, Anxiety Disorder NOS, ADHD, Depression, Dysthymic Disorder, Memory Lapses or Loss, Occupational Problem, and Panic Disorder without Agoraphobia. He did, per his separation MSE, have ASAP, and also received Intensive Outpatient Treatment. JLV showed no VA service-connected disability percentages and he has no had VA visits linked to specific diagnoses. He had a Denial of Benefits Letter of unknown content from the VA on 20 January 2011. He had a Separation Mental Status Exam on 12 June 2009, and was found to meet Army medical requirements. The examiner noted positive PTSD screen and negative TBI screen. The examiner rejected a PTSD diagnosis, and cleared the applicant for administrative discharge. The examiner also noted the applicant had complained of difficulty adjusting to the Army since BCT. Records did now show sexual orientation or discrimination against the applicant based on his orientation surfacing as a topic in his behavioral health visits. He first saw a psychiatrist for anxiety (07 May 2009) when he was 13. His mother died when he was 3 in a car accident. He also lost a female best friend in 2006 or so from a car accident. Although the applicant was struggling with various difficulties during service, the medical records did not corroborate the hypothesis that discrimination as a gay man was the reason for his difficulties. His diagnoses do not mitigate the misconduct. In a records review conducted at Arlington, VA on 3 November 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 15 July 2009 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 23 June 2009 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he failed to adapt to military laws, rules, and regulations of the United States Army; and he received several Articles 15 dated 9 April 2009, 1 May 2009, and 15 June 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 June 2009, the applicant waive legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 29 June 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 April 2008 / 4 years b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-2 / 68W10 / 1 year, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15, dated 9 April 2009, for without authority, fail to go at the time prescribed to his appointed place of duty (30 March 2009); extra duty for 7 days. CG Article 15, dated 1 May 2009, for without authority, fail to go at the time prescribed to his appointed place of duty (20 April 2009); extra duty and restriction for 14 days. CG Article 15, dated 15 June 2009, for being found drunk while on duty (8 June 2009); reduction to PVT / E-1, forfeiture of $326 pay for one month, extra duty and restriction for 14 days. Report of Mental Status Evaluation, dated 12 June 2009, relates that the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any administrative proceedings. He was cleared for any administrative actions deemed appropriate by command. The applicant received numerous negative counseling statements for various acts of misconduct; monthly counseling and being recommended for separation. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Examination, dated 15 June 2009, revealed the applicant was diagnosed with a history of anxiety attacks and depression. 5. APPLICANT-PROVIDED EVIDENCE: Online application (six pages); and a DD Form 214. 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 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation. 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 14-12b, Pattern of Misconduct. The SPD Code/RE Code Cross Reference Table shows a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. 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 requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant's record of service, the issues and document submitted with his application were carefully reviewed. The record confirms 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. By the documented pattern of misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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. The applicant requested a change to the narrative reason for separation. 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, paragraph 14-12b, pattern of misconduct. The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, his misconduct was due to "don't ask," "don't tell". The record of evidence shows that in a counseling statement dated 8 June 2009, the applicant's company commander indicated it was apparent he could not adapt to the life style of the military, despite countless assistance and support from his chain of command. Therefore he was initiating a chapter 14-12b pattern of misconduct separation. The commander did not make mention of "don't ask," "don't tell." The applicant further contends, several members of his unit became aware of him being gay and actively were cruel, unprofessional and hateful; including his company commander and platoon leaders. Although the applicant alleges that he was a mistreated because of his sexual orientation during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge and a change to the narrative reason. The applicant also contends, he should have been discharged under "don't ask," "don't tell" with a fully honorable. The record of evidence did not contain any statements where the applicant indicated he was a homosexual, or words to the effect. He did create a rebuttable presumption which indicates she engaged in, or had a propensity to engage in, or intend to engage in homosexual or bisexual acts. 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 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 3 November 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a new DD-214/Issue new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160013931 4