1. Applicant's Name: a. Application Date: 17 November 2016 b. Date Received: 5 December 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of under other than honorable conditions discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, a petition for de novo review based upon the Supplemental Guidance issued by the Secretary of Defense on 3 September 2014. The applicant respectfully requests that the in service PTSD and TBI diagnoses be considered along with honorable combat service and reenlistment while serving in Iraq. The applicant's inpatient psychiatric hospitalization and suicide attempt shortly before discharge show that the misconduct was not "willful" as the applicant met the definition of insanity at the time. The applicant states, the discharge was improper because the applicant met the definition of insanity under the UCMJ at the time of the misconduct leading to discharge. The discharge was improper because there are no discharge records showing the applicant received legal advice prior to discharge and because of the Army failed to provide discharge documents in spite of several attempts by the applicant and counsel. A Limited Use violation may have occurred during the discharge process, which would result in an upgrade to fully honorable pursuant to AR 600-85, but the applicant has been wrongfully denied the records. The applicant states, the discharge was inequitable because the overall service was honorable, including several awards and an offer and acceptance, of reenlistment during combat service in Iraq in 2004. Also, the discharge was inequitable and overly harsh considering the applicant's diagnosed PTSD, major depression and TBI, mitigated the misconduct that occurred just before discharge. The Army could have classified the discharge as an Alcohol Rehabilitation Failure, which would have resulted in an honorable discharge under AR 635-200 Chapter 9. Further, alcohol use is not willful misconduct unless it leads to disability or death under 38 CFR 3 301(c)(2). Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), contains no content regarding the applicant. VA records indicate the applicant is not eligible for VA services because of the discharge characterization. This fact notwithstanding, the VA has diagnosed the applicant with Alcohol Dependence, chronic PTSD and a history of TBI. In summary, as the Basis for Separation is not in file, no statement regarding medical mitigation can be made regarding the applicant. In a records review conducted at Arlington, VA on 30 November 2018, 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: Misconduct / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 10 September 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 January 2004 / 6 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 63S10, Heavy Wheeled Mechanic / 2 years, 7 months, 24 days d. Prior Service / Characterizations: RA, 17 November 2002 - 20 January 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq (1 September 2003 - 11 April 2004) f. Awards and Decorations: ARCOM, NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: i. Lost Time / Mode of Return: j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 9 July 2004, reflects the applicant was diagnosed with: Alcohol Dependence; PTSD; and, Depression, NOS. The applicant provided copies of his active duty medical treatment records, which reflect he was diagnosed with: Alcohol Dependence; Adjustment Reaction with Brief Depressive Reaction; Tobacco Use Disorder; Cluster B Traits/Antisocial; Insomnia; and, Partner Relational Problem. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed enclosures. 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason change. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of Under Other Than Honorable Conditions. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, 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 "Misconduct," and the separation code is "JKQ"." 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's service record contains documentation that supports a diagnosis of in service depression; 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. 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's contentions about potential for a Limited Use violation in his case and the lack of case separation documents in his service record were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation would have been met and the rights of the applicant would have been fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 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 third party statement provided with the application spoke of how the applicant's PTSD has affects his life. The author recognized his good performance while in the Army; however, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, the statement did not provide any evidence sufficiently compelling to overcome the presumption of government regularity. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 30 November 2018, 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 a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / 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 AR20170001567 1