1. Applicant's Name: a. Application Date: 4 March 2017 b. Date Received: 7 March 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable, a change to the narrative reason for discharge and the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that his discharge was inequitable because it was based on disciplinary infractions exacerbated by extenuating circumstance of Post-Traumatic Stress Disorder (PTSD), Iraq combat patrol OPTEMPO, interrupted, sleep patterns, medical issues from IED blast concussions, immaturity and youthful indiscretion. He also feels it was inequitable because the administrative separation board was incorrectly informed he had received a rehabilitative transfer but was never offered the opportunity of a rehabilitative transfer. After his discharge he sought help and was treated and medicated for symptoms of combat induced PTSD not identified prior to discharge. He was assigned to Scout Sniper Platoon. He deployed to Iraq four months later in November 2007. Unfortunately, he was a witness to a friendly fire incident in December 2007, where his squad leader was accidently shot in the head by one of their squad members in the squad bay. In February 2008, along with about 30 other Soldiers, he was assigned to another unit in an in-country intra-Brigade cross leveling action. He was further assigned to a line squad with an additional duty as designated marksman. He was assigned to SADAR City AOR which required both mounted and dismounted presence patrols on a continual basis. They would launch from there forward operation base (FOB) to a joint security station (JSS), contingency operating base (COB) or patrol base (PB) for extended forward operations and presence patrols. His additional duty as designated marksman often required he be loaned out to other units to provide over watch on their presence patrols. He usually had to perform this duty during his squad or platoon stand down time. This requirement provided limited recuperation sleep period or at times without any sleep between patrol rotations or guard duty. It was often very hard to stay awake in a moving vehicle or static guard position with the heat and body armor after such a mission requirement and he sometimes fell asleep despite trying stay awake. He contends upon his return to Fort Polk in 2009 after almost 15 months in country, he and members of his unit were celebrating being alive and back in the world and unfortunately several of them received an Article 15 for excess celebration partying well into the early morning hours. He was young and stupid and made a serious mistake not heeding the warning of his superiors. Per the Board's Medical Officer, based on the information available for review at the time, the applicant did not show PTSD or TBI on his AHLTA problem list. He was seen on 24 April 2009 for a Separation MSE and cleared for administrative discharge with no diagnoses noted. He showed no in-service hospitalizations. His Separation Medical Exam showed an 111111 profile. At the time, he was also not complaining of psychiatric symptoms. JLV showed no VA SC disability percentages or outpatient visits. There was insufficient evidence for mitigation of multiple instances of misconduct. There was insufficient evidence to mitigate based on a psychiatric condition. Further, even if he did have a condition such as PTSD, several of his sabbaticals from obedience to commands have no obvious connection to actual or putative PTSD or other psychiatric condition, unless he was floridly psychotic, which was not the case. In a records review conducted at Arlington, VA on 15 June 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 (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 3 November 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 August 2009 (2) Basis for Separation: The applicant was informed of the following reasons: at or near JSS Masafee, Iraq while on post as a sentinel, he was found sleeping upon his post, a violation of Article 113, UCMJ on 16 April 2008; At or near JSS Mustafee, Iraq, while on post as a sentinel in the guard tower he was found sleeping upon his post, a violation of Article 113, UCMJ on 17 June 2008; At or near Muhalla 824, Iraq while on post as a sentinel he was found sleeping upon his post, which was a violation of Article 113, UCMJ on 24 November 2008; Having knowledge of a lawful order issued by Captain R.E. in a safety brief to not drink, he did on 16 March 2009, failed to obey the same by wrongfully drinking underage, a violation of Article 92, UCMJ; He failed to go at the time prescribed to his appointed place of duty, a violation of Article 86, UCMJ on 17 March 2009; He was found drunk while on duty, a violation of Article 86, UCMJ, on 17 March 2009; and Having been restricted to the limits of the battalion footprint, did on or about 30 May 2009, broke said restriction, a violation of Article 134, UCMJ. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 13 August 2009 (5) Administrative Separation Board: The applicant requested consideration of his case by an administrative separation board. The administrative separation board convened. The applicant appeared before the board with his counsel. After careful consideration of the evidence before them the Board found the applicant had committed an act of serious misconduct per Army Regulation 635-200, Chapter 14, and Paragraph 14-12c. In view of this finding, and after careful consideration of the evidence before them the Board recommended that the applicant be separated from the military service with the issuance of a discharge under other than honorable conditions. (6) Separation Decision Date / Characterization: 26 October 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 February 2007 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 8 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (15 November 2007 to 15 February 2009) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Summarized Record of Proceedings Under Article 15, UCMJ, dated 23 May 2008, for sleeping on post as a sentinel in Iraq on 16 April 2008. The punishment consisted of 10 days extra duty. CG Article 15, dated 20 July 2008, for being found sleeping on post while on post as a sentinel in the guard tower in Iraq on 17 June 2008. The punishment consisted of reduction to E-2, forfeiture of $352 pay, and 14 days extra duty. Summarized Record of Proceedings Under Article 15, UCMJ, dated 20 November 2008, for violating a lawful general order in Iraq by wrongfully possessing pornographic material within the Multi-National Division-Baghdad area or responsibility on 4 October 2008. The punishment consisted of 3 days extra duty. FG Article 15, dated 13 December 2008, for being found sleeping on post while on post as a sentinel in Iraq on 24 November 2008. The punishment consisted of reduction to E-1, forfeiture of $673 pay per month for two months and 30 days extra duty and restriction. FG Article 15, dated 29 April 2009, for disobeying a lawful order issued by a commissioned officer by underage drinking on 16 March 2009, failing to go at the time prescribed to his appointed place of duty on 17 March 2009, and being drunk on duty 17 March 2009. The punishment consisted of forfeiture of $784 pay per month for two months and 45 days extra duty and restriction. FG Article 15, dated 24 July 2009, for breaking restriction on 30 May 2009. The punishment consisted of forfeiture of $699 pay per month for two months (suspended) and 20 days extra duty and restriction. Mental Status Evaluation, dated 24 April 2009, shows the applicant had the capacity to understand and participate in the valuation and was mentally responsible. The evaluation did not reveal any psychiatric conditions or symptoms that would have impair his ability to participate in the mentioned proceedings. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. Several negative counseling statement for various acts of misconduct and performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; treatment plan; letters/statements of support and recommendation; and enlisted record brief (ERB). 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, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 under other than honorable conditions discharge to honorable, a change to the narrative reason for discharge, and to the reentry eligibility (RE) code. 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 requests the narrative reason for his discharge and the reentry eligibility (RE) code be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ," with a RE code of 3. 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, reentry code, entered in block 27, 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 seeks relief contending, in effect, that his discharge was inequitable because it was based on disciplinary infractions exacerbated by extenuating circumstance of Post- Traumatic Stress Disorder (PTSD), Iraq combat patrol OPTEMPO, interrupted sleep patterns, medical issues from IED blast concussions, and immaturity and youthful indiscretion. He also feels it was inequitable because the administrative separation board was incorrectly informed he had received a rehabilitative transfer but was never offered the opportunity of a rehabilitative transfer. After his discharge he sought help and was treated and medicated for symptoms of combat induced PTSD not identified prior to discharge. He was assigned to Scout Sniper Platoon. He deployed to Iraq four months later in November 2007. Unfortunately, he was a witness to a friendly fire incident in December 2007, where his squad leader was accidently shot in the head by one of their squad members in the squad bay. In February 2008, along with about 30 other Soldiers, he was assigned to another unit in an in-country intra-Brigade cross leveling action. He was further assigned to a line squad with an additional duty as designated marksman. He was assigned to SADAR City AOR which required both mounted and dismounted presence patrols on a continual basis. They would launch from there forward operation base (FOB) to a joint security station (JSS), contingency operating base (COB) or patrol base (PB) for extended forward operations and presence patrols. His additional duty as designated marksman often required he be loaned out to other units to provide over watch on their presence patrols. He usually had to perform this duty during his squad or platoon stand down time. This requirement provided limited recuperation sleep period or at times without any sleep between patrol rotations or guard duty. It was often very hard to say awake in a moving vehicle or static guard position with the heat and body armor after such a mission requirement and he sometimes fell asleep despite trying stay awake. He contends upon his return to Fort Polk in 2009 after almost 15 months in country, he and members of his unit were celebrating being alive and back in the world and unfortunately several of them received an Article 15 for excess celebration partying well into the early morning hours. He was young and stupid and made a serious mistake not heeding the warning of his superiors. 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 unjustly discharged. In fact, the applicant's six Articles 15 and numerous negative counseling statements justify reason for discharge. 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. Further, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Also, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 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 15 June 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 AR20170004528 6