1. Applicant's Name: a. Application Date: 26 January 2017 b. Date Received: 30 January 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, that he would like an upgrade of his discharge for the purpose of being able to continue going to college. He contends that he had been charged with threatening a civilian and it was proven to be a false charge, his case was reopened therefore putting it under the double jeopardy rule. He believes that this was done unfairly and this decision has affected his ability to continue going to college. The record indicates the applicant had a prior records review on 3 August 2016. Per the Board's Medical Officer, based on the information available for review at the time, the applicant's behavioral health conditions did not mitigate the misconduct. In a personal appearance review conducted at Arlington, VA on 21 August 2017, and by a 3-2 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, post-service accomplishments, in-service volunteer work and the circumstances surrounding the discharge (i.e. severe family matters, arbitrary and capricious actions by the chain of command and in-service diagnosis of behavioral health issues) mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changes 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 2 April 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 September 2013 (2) Basis for Separation: The applicant was informed of the following reasons: for being disrespectful to SGT L on or about 3 May 2011 and 19 April 2011; Disobeying SGT B on or about 3 May 2011; Being disrespectful to 1SG F on or about 15 February 2011; Disobeying CPT R on or about 27 February 2011; Being disrespectful to SGT B on or about 24 July 2012; Failing to report to the company on or about 15 November 2012, Failing to report to an appointment on or about 21 January 2013, 29 January 2013, and 15 March 2013; Being disrespectful to SFC P on or about 4 March 2013, and Wrongfully communicating a threat to an individual on or about 24 June 2013 (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 17 September 2013 (5) Administrative Separation Board: On 13 December 2013, the board recommended separation with a General (Under Honorable Conditions) Discharge (6) Separation Decision Date / Characterization: 14 March 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 August 2010 / 4 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12V10, Concrete and Asphalt / 8 years, 10 months, 2 days d. Prior Service / Characterizations: USAR, 31 May 2005 to 4 July 2005 / NA ADT, 5 July 2005 to 8 April 2006 / HD USAR, 9 April 2006 to 5 August 2010 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, AAM-2, NDSM, GWTSM, NOPDR, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 28 June 2011, for being disrespectful in language toward SGT L, 3 May 2011, disobeying a lawful order from SGT B, 3 May 2011, disrespectful in deportment toward SGT L, 19 April 2011, and disrespectful in language toward SGT L, 19 April 2011. The punishment consisted of reduction to the grade of PV2/E-2, (suspended for 180 days), and 14 days restriction. CG Article 15, dated 24 April 2013, for being disrespectful in language toward SFC P on 4 March 2013, and disrespectful in deportment toward SFC P on 4 March 2013. The punishment consisted of reduction to E-3 (suspended), 14 days extra duty and restriction, and an oral reprimand. Summarized Article 15, dated 1 March 2011, for being disrespectful in deportment toward 1SG F, on 15 February 2011, and failed to obey a lawful order issued by a CPT S, on 27 February 2011. Punishment received is unknown. The applicant received numerous negative counseling statements for various acts of misconduct and performance counseling. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Report, dated 25 July 2013, states an Axis III: The medical record indicates the applicant was claiming an adjustment disorder on his separation physical. The mental status evaluation further shows that the applicant could understand and participate in administrative proceeding, appreciated the difference between right and wrong, met psychiatric retention standards and did not require a referral for MEB. It was also reflected in the additional comments; that the applicant appears to be a good candidate for rehabilitation and may benefit from a rehab transfer where a fresh start can occur. The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 general (under honorable conditions) discharge to honorable. The applicant's record of service and the issue 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 seeks relief contending, that he was charged with threatening a civilian and it was proven to be a false charge, his case was reopened therefore putting it under the double jeopardy rule. He believes that this was done unfairly and this decision has affected his ability to continue going to college. The applicant's contentions were noted; 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 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, nor has the applicant produced any evidence to support the contention that he was unfairly discharged or that he was a victim of double jeopardy. In fact, the applicant's Articles 15 and numerous negative counseling statements justify a pattern of misconduct. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to continue going to college. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does 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 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 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 document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Memorandum from counsel with enclosures - 42 pages b. The applicant presented the following additional contention(s): Change narrative reason on DD-214 (Section #28) Change RE code on DD-214 (Section #27) c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance review conducted at Arlington, VA on 21 August 2017, and by a 3-2 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, post-service accomplishments, in- service volunteer work and the circumstances surrounding the discharge (i.e. severe family matters, arbitrary and capricious actions by the chain of command and in-service diagnosis of behavioral health issues) mitigated the discrediting entry in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changes 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. 11. 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/RE Code to: Change SPD to JKN / No change to RE code f. Restore 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 AR20170001428 6