1. Applicant's Name: a. Application Date: 10 May 2017 b. Date Received: 15 May 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, the discharge was inequitable, because it was based on an isolated incident. The applicant served with honor, pride, and never got into any trouble. When the applicant returned home from a deployment to Iraq, the applicant received anti-depressant medication and pain medication. The applicant became addicted to the pain killers and used them as self-medication. The applicant never sought help for the issues. The applicant takes full responsibility for the committed crime that resulted from over- abusing medication and less than a year after returning from Iraq. Since incarceration, the applicant was diagnosed with PTSD and depression by a Texas Department of Criminal Justice psychologist and the VA mental health department. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record and the Armed Forces Health Longitudinal Technology Application (AHLTA), notes indicated no information regarding the applicant. Joint Legacy Viewer (JLV) indicates the applicant is 80% service connected; 70% for PTSD. Based on the available information, the applicant does not have a mitigating Behavioral Health disorder that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 28 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 (Civil Conviction) / AR 635-200, Chapter 14, Section II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 16 February 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 May 2006 (2) Basis for Separation: The applicant was informed of the following reasons: "On 23 August 2005, [he was] convicted by Civil Court for possessing Child Pornography and for Indecencies with a Child Younger than 17 years by Contact." (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 30 June 2006 (5) Administrative Separation Board: 21 September 2006, Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 4 January 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 August 2003 / 3 years b. Age at Enlistment / Education / GT Score: 34 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: d. Prior Service / Characterizations: USAR (28 August 1990 to 11 September 1990) / NA IADT (12 September 1990 to 25 January 1991) / UNC USAR (26 January 1991 to 1 September 1998) / HD e. Overseas Service / Combat Service: NIF / NIF f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DA Form 4187 (Personnel Action), dated 9 March 2005, shows the applicant's duty status changed from PDY to Civilian Confinement, effective 6 March 2005. Report of Proceedings by Board of Officers with Separation Board Transcript and its associated documents, indicates the GCMCA approved the administrative separation board that convened on 21 September 2006, findings and recommendations: That he has been convicted by a civil court with a sentence by civilian authorities to confinement of six months or more, that he be separated from the US Army, and that his discharge be characterized as under other than honorable conditions. i. Lost Time / Mode of Return: 713 days (Civil Confinement on 6 March 2005 to 16 February 2007) / The applicant remained incarcerated at the time of his discharge. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214 (Application for the Review of Discharge), dated 5 May 2017, with self-authored statement; DD Form 214; USAR discharge orders, dated 1 September 1998; and DD Form 214, dated 25 January 1991 (IADT-USAR). 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. Entry-Level-status separation is described as entry-level with service uncharacterized if processing of separation action is initiated while a Soldier is in entry-level status, except when characterization of under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. An entry-level status for RA Soldiers, is the first 180 days of continuous Active Duty. Paragraph 14-5 stipulates that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: (1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended. (2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (See AR 600-8-19.) 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, misconduct (civil conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" 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 general (under honorable conditions). 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 serious incidents of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence that the applicant's service mitigated the misconduct or poor performance, such that he should have been retained on Active Duty. The applicant contends his discharge was inequitable, because it was based on an isolated incident, as he served with honor and pride, and never got into any trouble. 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 for which he was incarcerated, the Board can find that his complete period of service and his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant's contentions regarding his behavioral health issues and having been diagnosed with PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence provided no behavioral health or PTSD diagnoses, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines, based on the available record, 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. However, if there are no documentary evidence, and if the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., documentary evidence of his medical or behavioral health diagnoses) for the Board's consideration because they are not available in the official record. 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 28 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 AR20170008393 1