1. Applicant's Name: a. Application Date: 12 June 2017 b. Date Received: 26 June 2017 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 narrative reason change. The applicant seeks relief contending, in effect, due to his health issues, his behavior was labeled as pattern of misconduct by his command. The health issues were diagnosed as service connected health issues prior to the punitive actions and his discharge. The pattern of misconduct was based on his failure to report on time to the 0600 formation. His command was instructed by doctors to allow him to report at 0700, until cleared by medical authorities. The doctors informed his unit that he was on medication for insomnia, bulging lumbar disc, chronic knee pain, PTSD, anxiety and depression, and sleep apnea. He states, his command failed to comply with the doctor's recommendations resulting in his three Article 15s. His unit and command were instructed by his Army doctors and health care providers to reassign the applicant to the Warrior Transition Unit (WTU) for further medical care and to receive treatment. His unit and command, failed to comply with the medical requests to reassign him to the WTU. He states, had he been afforded the opportunity to receive the medical care and treatment that was recommended while being assigned to WTU, he would have either returned to regular duty or received an honorable medical discharge or retirement. He states, he was already on his second enlistment and he had a very upstanding military career; with aspirations of fulfilling 20 or more years of service and retiring. He requests that the Board consider granting him an honorable medical retirement or discharge. 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 partially mitigating medical or behavioral health condition for the offenses which led to his separation from the Army. SMs electronic military medical records indicated diagnoses of an Adjustment Disorder, Alcohol Abuse, Anxiety, Depression, Marital Problem, and PTSD. SM was first seen by behavioral health in April 2010 after being referred by the Chaplain for marital stress and adjustment difficulties since returning from deployment where he witnessed a number of traumatic events and was involved in body clean up procedures and losses of close comrades. He reported having to clean up the body of his close friend and having to detail a lot of funerals. He reported occasional nightmares and regular flashbacks, insomnia and low mood. He reported trying to speak to wife about deployment events but she did not want to hear it. Medical note 19 May 2010 indicated increased stress due to SM accidentally setting his kitchen on fire. Medical note 25 May 2010 indicate SM reported constant harassment by NCO which started after being late for a PT test and that he gets written up even when only 2 minutes late. He also noted staying up late due to having to clean up kitchen from recent fire. He reported not having one negative counseling prior to PCSing from Germany to Fort Benning and that he was previously recommended for soldier of the month twice with previous Command. That same day SM self- referred to ASAP due to drinking too much alcohol. He reported drinking daily since March 2010 when he PCSd. He reported struggling with nightmares, insomnia, depression and marital problems and was pending a divorce. Other stressors include wife taking a large amount of money from his account, abandoning their dog, and not paying electricity bills leading to power being cut off. SM was prescribed Zoloft and Lunesta. Medical note 21 June 2010 SM reported stress related to extra duty and often working until 11pm. Medical noted 20 July 2010 SM reported concern about taking prescribed Percocet for back pain because it sometimes caused him to wake up tired and subsequently be late to formation. Medical note 27 July 2010 indicated medical provider contacted SMs Command informing them a memo was being prepared to support SM at his administrative hearing. Memo entailed concern that a particular SGT was being emotionally abusive and inflicting unnecessary discipline on SM. Medical noted October 2010 indicated SM was moved to another unit and that although the overall climate was better, SM was having problems with SGT allowing him to make medical appointments. Medical note 27 October 2010 indicated SM was experiencing significant back pain and had started receiving an epidural every 2 weeks to help discomfort which was also starting to effect his knees and hip. SM also revealed that since electricity was turned off, he started staying at someone else's home and never cleaned out the fridge which was full of food and resulted in it being full of maggots. Medical provider also noted that SMs personal hygiene had started to decline which was attributed to his depression. Medical note 15 November indicated SM felt overwhelmed due to Command recently taking his car because his car registration had expired while he was in the field. He was also dealing with the recent loss of his aunt and grandmother. Medical note January 2011 indicated SM missed physical therapy appointments due to field exercise which was in violation of his physical profile. 10 March 2011 SM was referred for a Command directed mental health eval and was not cleared due to mental health problems. A second mental health eval dated 29 March 2011 indicated SM was psychiatrically cleared. SM seen by FAP on 23 February 2011 following an altercation with his estranged wife. VA medical records indicated SM is 100% service connected for PTSD. VA medical notes indicated SM has concerns related to homelessness and alcohol and cocaine abuse. In summary, SMs diagnosis of PTSD and other behavioral health conditions can be associated with some FTRS; however, they are not reasonably related to other misconduct (i.e. BAH payments, car payments, violating a protection order, etc. Therefore, his conditions are only partially mitigating. Post service SM has a 90% service connected rating for diagnoses of Chronic PTSD, Depression, Anxiety, and Insomnia. In a records review conducted at Arlington, VA on 16 March 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, arbitrary and capricious actions by the chain-of-command, the circumstances surrounding the discharge (i.e. severe family matters and in-service diagnosis of PTSD with a 90% VA disability rating) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (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 / General (Under Honorable Conditions) b. Date of Discharge: 12 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 April 2011 (2) Basis for Separation: The applicant was informed of the following reasons: Failure to report to EIB APFT on 12 March 2010; Failure to report to mandatory FRO meeting on 22 April 2010; Driving an excessive speed on the tank trail on 22 Apr 2010; Failure to report to PT formation on 28 April 2010; Failure to report to PT Formation on 29 April 2010; Failure to report to flag detail on 10 May 2010; Failure to report to an appointment at the hospital on 11 May 2010; Failure to report to PT Formation on 12 May 2010; Received a ticket for speeding on 18 May 2010; Failure to report to first formation on 18 May 2010; Failure to report to first formation on 20 May 2010; Failure to report to first formation on 24 May 2010; Failure to report to first formation on 26 May 2010; Failure to report to flag detail on 1 July 2010; Failure to report to detail at Stuart Field on 6 July 2010; Failure to have Military ID Card and Driver's License to enter military installation which caused an inability to report to first formation on 16 July 2010; Failure to report to accountability formation on 10 September 2010; Failure to report to accountability formation on 5 October 2010; Failure to report back from leave within the allocated time on 22 October 2010; Failure to report to accountability and platoon formation on 22 October 2010; Driving with expired car registration from 1 to 10 November 2010; Failure to report to PT formation and accountability formation on 15 November 2010; Failure to provide paperwork to support 72 hours quarters on 3 December 2010; Failure to report to BDE Staff Duty on 4 December 2010; Violation of Protection Order on 16 February 2011; Failure to pay car payment, which resulted in repossession on 23 February 2011; Failure to make BAH payments to spouse for March 2011; and, Failure to report to first formation on 3 March 2011. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 April 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 April 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 September 2007 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 10 months, 28 days d. Prior Service / Characterizations: RA, 5 September 2006 - 11 December 2006 / UNC e. Overseas Service / Combat Service: Germany, SWA / Iraq (7 April 2008 - 16 May 2009) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 10 June 2010, failing to go at the time prescribed to his appointed place of duty on 11 occasions (between 12 March and 26 May 2010). The punishment consisted of extra duty for 14 days. CG Article 15, dated 19 July 2010, for failing to go at the time prescribed to his appointed place of duty on two occasions (between 1 and 3 July 2010). The punishment consisted of a reduction to E-3 (suspended); and, extra duty for 14 days. CG Article 15, dated 5 November 2010, for failing to go at the time prescribed to his appointed place of duty on three occasions (between 10 September and 22 October 2010). The punishment consisted of a reduction to E-3. Warrant In Debt, Commonwealth of Virginia, dated 22 February 2011, reflects the applicant was named a defendant and ordered to appear in court for a debt in the sum of $2946.80. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 2 days (NIF, 16 March 2001 - 17 March 2011) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 9 March 2011, reflects a mental status examination, clinical interview and review of available records were conducted. The applicant had been deployed and was positive for symptoms of PTSD per chart review and was in active mental health treatment. Based on this screening, there was also a sleep disorder in addition to other mental health issues noted. The Soldier is not psychologically cleared for any administrative actions deemed appropriate by command. The applicant was encouraged to continue mental health counseling and medication management with regular providers for treatment. Report of Mental Status Evaluation, dated 29 March 2011, 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 an Anxiety Disorder NOS. 5. APPLICANT-PROVIDED EVIDENCE: Online application, with all allied documents listed in the supporting documentation information section 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, paragraph 12b, pattern of misconduct. 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 his general (under honorable conditions) discharge to honorable. 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 have been retained on Active Duty. The applicant contends the narrative reason for the discharge should be changed to medical retirement. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under 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 he should have received a medical retirement or medical discharge. 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's service record contains documentation that supports a diagnosis of in service Anxiety Disorder; 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 shows that on 29 March 2011, the applicant underwent a mental status evaluation, which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends his command did not transfer him to a WTU as recommended by his doctors. 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 contends that had his command transferred him to a WTU, he would have received an honorable discharge. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. 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 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 16 March 2018, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, arbitrary and capricious actions by the chain-of-command, the circumstances surrounding the discharge (i.e. severe family matters and in-service diagnosis of PTSD with a 90% VA disability rating) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD Code to: Change SPD Code to JKN 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 AR20170009863 1