1. Applicant's Name: a. Application Date: 28 March 2017 b. Date Received: 3 April 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 general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, his deployment to Afghanistan messed him up. He lost his way and got incarcerated with only a few months left on his enlistment contract. He did a lot for the Army. An upgrade would help him and his children. Per the Board's Medical Officer, a voting member, based on the information available for review at the time to include the military electronic medical record, the applicant did not have a mitigating medical or behavioral health condition for the offenses which led to his separation from the Army. SMs electronic military medical records indicated diagnoses of an Adjustment Disorder and an Anxiety Disorder. He was evaluated by the VA on 25 January 2017 and was found to not have a Mental Health Disorder, but there was indication of an Antisocial Personality Disorder. SM does not have a behavioral health rating from the VA. In a records review conducted at Arlington, VA on 11 July 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: 3 March 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 April 2014; however, the applicant acknowledged receipt on 16 July 2014, and an indication that he had been advised of his right to consult with a counsel. (2) Basis for Separation: The applicant was convicted by a criminal civilian court for involuntary manslaughter and sentenced to seven years confinement. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 18 June 2014 (Although the applicant requested conditional waiver of appearing before a separation board, contingent upon receiving no less than a general (under honorable conditions) discharge, the GCMCA made a referral to a "Standing Administrative Separation Board" on 22 August 2004.) (5) Administrative Separation Board: 9 October 2014, Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 6 January 2015 / Under Other Than Honorable Conditions (The GCMCA approved the administrative separation board's findings and recommendation.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 March 2009 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3years, 7 months, 20 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (15 September 2011 to 26 July 2012) per ERB f. Awards and Decorations: ARCOM; AGCM; NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Return of Absentee indicates the applicant was apprehended by civil authorities and returned to military control on 31 May 2013, after being AWOL since 20 November 2012. Civilian court "Judgment Entry of Confinement," dated 24 January 2014, indicates the applicant was convicted of first degree involuntary manslaughter, and that he was sentenced to seven years prison term and a sentence of 236 days jail time being credited, and a five-year mandatory parole upon his release. Negative counseling statement for being informed of an involuntary separation being initiated due to his civilian conviction. Report of Proceedings by Board of Officers with its findings and recommendation worksheet shows that it convened on 9 October 2014, made the following findings and recommendations: The allegation of the applicant being convicted in a civilian court of involuntary manslaughter was supported by a preponderance of evidence. The board recommended the applicant be separated with an "Under Other than Honorable Conditions" characterization of service. i. Lost Time / Mode of Return: 832 days (AWOL: from 20 November 2012 to 30 May 2013, for 192 days and Civilian Confinement: from 2 June 2013 to 3 March 2015, for 640 days) / AWOL: The applicant was apprehended by civil authorities. Civilian Confinement: The applicant continues to serve his seven-year prison sentence. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 22 December 2014, shows the applicant and examiner noted behavioral health issues and treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 28 March 2017. 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 635-10 sets forth policies and procedures for reporting absences, and establishes procedures for special category absentees, personnel dropped from the rolls, and the surrender of military personnel to civilian law enforcement authorities. It includes policy and procedures for personnel in an absent without leave status who are charged with or convicted of a civilian or criminal offense or confined or restricted by a court order. Paragraph 2-5d stipulates that absent Soldiers serving sentences in civilian confinement, committed, or restricted by court order for six months or longer may be reassigned to a local PCF, and that reassignment to a PCF is made only after the Soldier's permanent unit commander completes action per AR 635-200 or AR 600-8-24. 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 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's contentions regarding his behavioral health issues which involved being messed up by his deployment, were carefully considered. A careful review of the available record indicates the applicant's behavioral health issues 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. 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 contends an upgrade would help him and his children. However, eligibility for veterans' benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 11 July 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 AR20170009265 1