1. Applicant's Name: a. Application Date: 21 February 2017 b. Date Received: 27 February 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 change to his narrative reason for discharge. The applicant seeks relief contending, in effect, that he has evidence that proves the charges made against him were unfounded. He contends he was restricted to base and not allowed to visit his expectant finance. Even when she lost their baby, he was not allowed to visit and comfort her. He sought and received counselling and treatment for relationship distress, unspecified personality disorder, depression, and anxiety. His psychiatrist requested that he be separated from 3 other individuals (their co-worker) who were under restraining orders for harassing him. But the authorities overseeing his case ignored the legal order and his doctor's requests. The fact is, they had no proof that he committed any crimes, yet they proceeded him as though they did, making false claims to support their persecution of him. He now requests that all medical, situational and legal evidence provided be compared with what was said to have happened. He was accused without any proof, treated as though he was a convicted criminal, and then branded with a general (under honorable conditions) discharge, which has cost him job opportunities, embarrassment, frustration, stress, and continued depression. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant was diagnosed with a Personality Disorder and General Anxiety Disorder. However, due to the nature of the behavioral health condition, it does not mitigate the offenses that led to his separation. In a records review conducted at Arlington, VA on 14 September 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 13 February 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 January 2016 (2) Basis for Separation: The applicant was informed of the following reasons: Wrongfully possessing and receiving child pornography, to wit: a photograph and picture of a minor or what appeared to be a minor engaging in a sexual explicit conduct, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces on 1 December 2015; Being disrespectful in language toward SGT Corey, a noncommissioned office, by saying to him "Get the fuck out of my room; I'm going to fuck you up", or words to that effect on 27 October 2016; Being disrespectful in deportment toward SGT Cory, by not standing at parade rest and addressing him as Sergeant when talking to him on 27 October 2016; Failing to go at the time prescribed to his appointed place fo duty on 28 October 2016; Disobeying a lawful order from a noncommissioned officer to turn down his music, and order which was his duty to obey on 28 October 2016; Being disrespectful in deportment toward 1SG Larson, by not standing at parade rest and addressing his as First Sergeant when talking to him on 28 October 2016; Being disrespectful in language toward 1SG L., a superior noncommissioned officer by saying to him "I'm not coming back to work; I'm alright here", or words to that effect on 28 October 2016 Wrongfully using provoking words to wit, "Fuck you, pussy motherfuckers', or words to that effect, toward SPC A, US Army on 30 November 2016; Being disrespectful in language toward CPL C., a noncommissioned officer, then know by him to be a superior noncommissioned office, by saying to him "Fuck your rank pussy motherfucker', or words to that effect on 30 November 2016; and Striking CPL C, a noncommissioned officer by striking him in the face with a closed fist on 30 November 2016. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 19 January 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 January 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 2014 / 3 years, 22 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-3 / 74D10, Chemical Biological, Radiological, and Nuclear (CBRN) Specialist / 2 years, 7 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (28 August 2015 to 7 January 2016) f. Awards and Decorations: NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CID Report, dated 6 June 2016, showing the applicant was the subject of investigation for possessing, receiving or viewing child pornography. Field Grade Officer Letter of Reprimand, dated 3 November 2016, for engaging in lewd activity at or near Baghdad Diplomatic Support Center, Iraq, on or about 1 December 2015, by receiving nude images of a female under the age of 18 on his cellular phone and personal computer. He flaunted these photographs to his acquaintances who warned him of the consequences of possessing such items, to which he replied "if I am ever caught, I will grab my weapon and go on a killing spree" and "if the Army wants to charge me as a rapist, I will kill everyone I can" or words to that affect. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 December 2016, which shows the applicant was diagnosed with an Axis I for relationship distress with intimated partner & other problems related to employment, Axis II unspecified personality disorder, and Axis III not medical conditions impacting the Behavioral Health of the Soldier. It was noted that the applicant was in treatment by SUDCC and reported being abstinent from alcohol and illicit substances. The applicant met the psychiatric retention requirements contained in AR 40-501. He was screened for post-traumatic stress disorder, depression, military sexual trauma, and traumatic brain injury. He did not show evidence of any psychiatric condition that would had met the psychiatric criteria for referral to IDES/MEB. In addition, he appeared to have full comprehension of moral and leg matters. He could continue to utilize BH and SUDCC serving up until his separation, to improve his generally poor coping, and problems dealing with separation from his fiancé. His non-deployable BH profile was to expire on 15 December 2016, and had no impact on commands ability to initiate chapter. He was cleared, from a psychological standpoint, for any administrative action as command deemed appropriate including chapter 14-12b separation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; separation packet/documents; and enlistment documents. 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, and pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that 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 his general (under honorable conditions) discharge to honorable and a change to his narrative reason for discharge. The applicant's record of service, the issues and documents 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. 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 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 appropriate RE code is 3. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, that he has evidence that proves the charges made against him were unfounded. He contends he was restricted to base and not allowed to visit his expectant finance. Even when she lost their baby, he was not allowed to visit and comfort her. He sought and received counselling and treatment for relationship distress, unspecified personality disorder, depression, and anxiety. His psychiatrist requested that he be separated from 3 other individuals (their co-worker) who were under restraining order for harassing him. But the authorities overseeing his case ignored the legal order and his doctor's requests. The fact is, they had no proof that he committed any crimes, yet they proceeded him as though they did, making false claims to support their persecution of him. He now requests that all medical, situational and legal evidence provided be compared with what was said to have happened. He was accused without any proof, treated as though he was a convicted criminal, and then branded with a general (under honorable conditions) discharge, which has cost him job opportunities, embarrassment, frustration, stress, and continued depression. 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 the charges made against him were unfounded. In fact, the applicant's numerous negative counseling statements justify a pattern of misconduct. The applicant's statement alone does 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. Also; the applicant contends that his psychiatrist requested that he be separated and his command ignored the request. However, the Report of Mental Status Evaluation, dated 12 December 2016, shows the applicant was diagnosed with an Axis I for relationship distress with intimated partner & other problems related to employment, Axis II unspecified personality disorder, and Axis III not medical conditions impacting the Behavioral Health of the Soldier. It was noted that the applicant was in treatment by SUDCC and reported being abstinent from alcohol and illicit substances. The applicant met the psychiatric retention requirements contained in AR 40-501. He was screened for post-traumatic stress disorder, depression, military sexual trauma, and traumatic brain injury. He did not show evidence of any psychiatric condition that would had met the psychiatric criteria for referral to IDES/MEB. In addition, he appeared to have full comprehension of moral and leg matters. He could continue to utilize BH and SUDCC serving up until his separation, to improve his generally poor coping, and problems dealing with separation from his fiancé. He was cleared, from a psychological standpoint, for any administrative action as command deemed appropriate including chapter 14-12b separation. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 14 September 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 AR20170003884 1