1. Applicant's Name: a. Application Date: 3 February 2017 b. Date Received: 3 April 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests a narrative reason change and a reentry (RE) code change. The applicant seeks relief contending, in effect, the applicant is a decorated Operation Iraqi Freedom combat veteran who served honorably from 27 February 2008 to 17 December 2010 prior to minor, non-violent disciplinary infractions that occurred post-redeployment and led to his discharge. Counsel contends the narrative reason for the applicant's separation was inequitable because it did not take into consideration the applicant's undiagnosed Post-Traumatic Stress Disorder (PTSD), which affected his total capability to serve; it was an arbitrary and capricious action that was inconsistent with disciplinary standards at the time of discharge; and, because it was inconsistent with comparable ADRB decisions. Counsel Contends, the narrative reason for the applicant's separation was improper because it reflected an error of fact, law, procedure, and discretion, prejudicing him. Counsel contends, the narrative reason was inequitable and improper because the applicant was not, at the time of his discharge, assessed by a clinical psychologist or psychiatrist for PTSD /TBI. Counsel provides a legal brief in support of his contentions. The evidence of record reflects the applicant had a prior records review conducted at Arlington, VA on 14 January 2015. Per the Board's Medical Officer, based on the information available for review at the time, the SMs electronic military records were reviewed and revealed no in-service behavioral health diagnoses. SM has a diagnosis of PTSD from the VA with a 50% rating. Since PTSD can be associated with anger/irritability, this condition can be related to the 20 May 2010 incident in which SM disrespected a superior commissioned officer; however, this condition is not reasonably related to the misconduct of making a false statement or being arrested on an outstanding warrant. In a records review conducted at Arlington, VA on 10 January 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, and a post-service PTSD diagnosis. Therefore, the board voted to grant relief and change 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. The board found the reentry code proper and equitable and voted not to change it. (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 / Honorable b. Date of Discharge: 16 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 November 2010 (2) Basis for Separation: The applicant was informed of the following reasons: disrespecting a superior commissioned officer (20 May 2010), making a false official statement to a military police officer (16 September 2010), and, being arrested on an outstanding warrant for resisting arrest or search (27 January 2010). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 1 December 2010, the applicant waived his rights to consult with a JAG officer. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 December 2010 / General (Under Honorable Conditions) / On 14 January 2014, the ADRB upgraded the applicant's characterization of service to Honorable. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 February 2008 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 21 / GED / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12B10, Combat Engineer / 2 years, 9 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (13 December 2008 - 9 November 2009) f. Awards and Decorations: ICM-2CS, ARCOM, NDSM, GWOTSM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A MP Report, dated 22 September 2010, reflects the applicant was the subject of an investigation for wrongful possession of a prohibited substance (Spice) (On-Post) and wrongful possession of paraphernalia. A MP Report, dated 9 February 2010, reflects the applicant was the subject of an investigation for resisting arrest (Warrants) (Off-Post). Two negative counseling statements, dated 25 May 2010 and 14 June 2010, for unsatisfactory performance and missing formation. CG Article 15, dated 26 July 2010, for failing to go at the time prescribed to his appointed place of duty on three occasions (20 May 2010 x 2, and 14 June 2010) and being disrespectful to a commissioned officer (20 May 2010). The punishment consisted of extra duty and restriction for 14 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 24 September 2010, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant was mentally responsible with a clear thinking process. He was diagnosed with an adjustment disorder with depressed mood. The applicant provided a copy of his VA disability rating decision, dated 3 March 2014, which reflects he has a 50% disability rating for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with a legal brief and supporting documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he started to regularly attend church with his brother; he graduated from APEX Technical School; sought treatment for PTSD; and he has not abused illegal drugs or alcohol or been in any legal trouble. 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). 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, through counsel, requests a narrative reason change and a reentry (RE) code change. The applicant's record of service, 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. 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 contends the narrative reason for the discharge should be changed because it was an arbitrary and capricious action that it was inconsistent with disciplinary standards at the time of discharge. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge, which was later upgraded to honorable. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," 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. 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 were met and the rights of the applicant were fully protected throughout the separation process. Counsel contends the narrative reason for the applicant's separation was inequitable and improper because it did not take into consideration the applicant's undiagnosed Post-Traumatic Stress Disorder (PTSD); and, at the time of his discharge, the applicant was not assessed by a clinical psychologist or psychiatrist for PTSD / TBI. However, the applicant's service record contains documentation that supports a diagnosis of in service adjustment disorder with depressed mood depression; and, that the applicant had been screened for PTSD and Traumatic Brain Injury (TBI) and did not meet the diagnostic criteria for these conditions. A careful review of the entire record reveals that this medical condition did not overcome the reason for discharge granted. The record shows that on 24 September 2010, the applicant underwent a mental status evaluation, which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. 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 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 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. Counsel contends that other Soldiers with similar offenses were granted narrative reason changes based on mitigating PTSD. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. Counsel contends the narrative reason was improper because it reflected an error of fact, law, procedure, and discretion, prejudicing him. Counsel contends the applicant was informed of several reasons for his discharge, which was not pursuant to a separation under AR 635-200, chapter 14-12c. However, AR 635-200, chapter 2-2c, states the separation authority is not bound by the recommendations of the initiating or intermediate commander and has complete discretion to direct any type of discharge and characterization of service authorized by the applicable provisions of this regulation. The Army Discharge Review Board is authorized to consider post-service factors in the characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that a change of his narrative reason for separation will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 10 January 2018, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, and a post-service PTSD diagnosis. Therefore, the board voted to grant relief and change 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. The board found the reentry code proper and equitable and voted not to change it. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change 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 AR20170006664 2