1. Applicant's Name: a. Application Date: 3 April 2017 b. Date Received: 4 April 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant was suffering from combat-induced Post Traumatic Stress Disorder. His self-medication of untreated PTSD with friends and alcohol resulted in a DUI, an isolated incident. He performed meritoriously in combat and during most of his service. He was discharged, despite the dismissal of the DUI charges by a local prosecutor. He was given no opportunity to rehabilitate himself and was improperly processed for separation rather than allowed to complete his service. His discharge was not based on the Army's principles, regulations or values, but on his command's desire to expediently remove a perceived liberty risk. He was stripped of all his rank and discharged for a pattern of misconduct without due process. No attempt was made to treat his PTSD or alcohol use, or rehabilitate him as an effective MP or transfer him to another unit, where he might easily have excelled, as he had done in Iraq. Numerous regulations meant to prevent the needless waste of discharging trained and rehabilitative Soldiers were violated. He was improperly discharged based upon a conduct for which he was acquitted, an Article 15 that failed to state an offense under Article 134, denied the opportunity for a rehabilitative transfer, and processed for discharge before it was approved, based upon a recommendation which omitted all positive and commendatory material. He was inequitably discharged for an off-duty misconduct caused by an untreated PTSD. He has been subjected to the stigma of a less than honorable discharge despite his meritorious service and honorable post-service conduct. The DD Form 214 should be corrected to include his Army Commendation Medal and the remark "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" be deleted. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), VA records indicate he is 50% service connected for Anxiety Disorder. He has also been diagnosed with PTSD by the VA (as of 14 Jan 2015). Based on the available information and in accordance with the Liberal Guidance policy, the applicant has a behavioral health disorder that is mitigating for some of his misconduct. As PTSD is associated with the use of alcohol to self-medicate symptoms, there is a nexus between his PTSD and his DUI. As PTSD is associated with avoidant behavior, there is a nexus between applicant's PTSD and his incident of Failure to Report. PTSD is a mitigating factor in both of these offense. PTSD, however, is not mitigating for the offense of obstruction of justice. In a records review conducted at Arlington, VA on 5 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 October 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 September 2005 (2) Basis for Separation: The applicant was informed of the following reasons: On 2 June 2004, he failed to go to his appointed place of duty. On 15 April 2005, he was arrested by a civilian county police for driving under the influence of alcohol. On 21 May 2005, he was arrested by a civilian county sheriff's office for obstructing justice. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 September 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 September 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 September 2002 / 5 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 3 years, 1 month, 3 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (29 March 2003 to 28 March 2004) f. Awards and Decorations: ARCOM; NDSM; ICM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for failing to go to his appointed place of duty at the prescribed time; being recommended for an involuntary separation; receiving a FG Article 15; being stopped by a county police department; driving under the influence of alcohol; and having an underage drinker in vehicle with him. General Officer Memorandum of Reprimand, dated 11 May 2005, indicates the applicant was reprimanded for driving under the influence of alcohol on 15 April 2005. A civilian standard arrest report, dated 21 May 2005, indicates the applicant was the subject of an investigation for obstruction of official duty. FG Article 15, dated 30 August 2005, for wrongfully committing an indecent acts with Ms. A.D. on 3 June 2005. The punishment consisted of a reduction to E-1, forfeiture of $617 pay per month for two months, and 30 days of extra duty and restriction. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: VA Staff Psychologist letter, dated 22 December 2016, indicates the applicant was diagnosed with PTSD, and has been enrolled and treated for his medical condition since September 2006. VA Medical records, Consult Requests, dated in November 2014, details the applicant's PTSD-specific assessment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 3 April 2017, with attorney-authored brief, and an index listing voluminous indexed referenced supporting documents. 6. POST SERVICE ACCOMPLISHMENTS: The attorney-authored brief states, in effect, that the applicant, despite suffering from PTSD and the stigma of his discharge, he turned his life around-he worked his way through college, became a certified nursing assistant, and was hired by a local VA Medical Center as a health technician in specialty clinics, where he occasionally assists with surgeries. 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 14-12b, 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 to change the narrative reason for his discharge. The applicant's available record of service, and 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. By the pattern of misconduct, the applicant compromised the special trust and confidence placed in a Soldier. He knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant's contentions regarding his behavioral health issues with a subsequent diagnosis and treatment for PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant contends the discharge was unjust because it was not based on the Army's principles, regulations or values, but on his command's desire to expediently remove a perceived liberty risk; he was stripped of all his rank and discharged without due process; no attempt was made to treat his PTSD or alcohol use, or rehabilitate him as an effective MP or transfer him to another unit; numerous regulations meant to prevent the needless waste of discharging trained and rehabilitative Soldiers were violated; and his improper discharge was based upon a conduct for which he was acquitted, an Article 15 that failed to state an offense under Article 134, and processed for discharge before it was approved. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for his discharge. The applicant contends he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self- referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. The applicant contends that the charges against him were dismissed before he left the Army. However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen. In this case, the charges were dismissed on 25 June 2006, because on 21 June 2005, the applicant agreed to and completed rehabilitation, and diversion program within a 12-month period. The applicant contends the incident that caused his discharge was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The third party statements provided with the application speak highly of the applicant's performance and character and some recognize his good conduct after leaving the Army. However, the persons providing the character reference and supporting statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 14, paragraph 14-12b is "Pattern of Misconduct," and the separation code is JKA. 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 his DD Form 214 should be changed to include his ARCOM, and deletion of the remark "Member has not completed first full term of service." However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. Therefore, that portion of his request applicable to correcting his DD Form 214 will be referred to and addressed by the Army Board for Correction of Military Records (ABCMR). 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: Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), VA records indicate he is 50% service connected for Anxiety Disorder. He has also been diagnosed with PTSD by the VA (as of 14 Jan 2015). Based on the available information and in accordance with the Liberal Guidance policy, the applicant has a behavioral health disorder that is mitigating for some of his misconduct. As PTSD is associated with the use of alcohol to self-medicate symptoms, there is a nexus between his PTSD and his DUI. As PTSD is associated with avoidant behavior, there is a nexus between applicant's PTSD and his incident of Failure to Report. PTSD is a mitigating factor in both of these offense. PTSD, however, is not mitigating for the offense of obstruction of justice. 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 AR20170006662 1