1. Applicant's Name: a. Application Date: 10 November 2016 b. Date Received: 23 June 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable, a change of narrative reason for discharge to convenience of the government, and a change to reentry eligibility (RE) code to 1. The applicant, assisted by a Veteran's Service Officer, seeks relief contending, in effect, that the applicant did not receive an honorable discharge due to sheer prejudices and reprisal by the chain of command. The applicant believes that because of ethnicity and language barrier, was discriminated against, as the applicant was often mocked and made fun of by members of the platoon. Because of the current discharge, the applicant has been prevented from utilizing education benefits or reenlisting. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, notes indicate multiple medical and behavioral health diagnoses. A Mental Status Evaluation, dated 18 November 2015, indicated the SM had behavioral health diagnoses and was being considered for a Chapter 5-17. The applicant screened negative for PTSD, mTBI, and sexual assault and was psychiatrically cleared. The SM appeared to not be a good fit for the Army and experienced adjustment difficulties. Based on the information provided, the applicant had a medical or behavioral health condition that was partially mitigating for the offenses which led to separation from the Army. In a records review conducted at Arlington, VA on 15 August 2018, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Minor Infractions) / AR 635-200 / Chapter 14-12a / JKN / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 March 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 March 2016 (2) Basis for Separation: The applicant was informed of the following reasons: for failure to report to his appointed place of duty on divers occasions; Disobeying a noncommissioned officer on diver's occasions; Disobeying a lawful order from his team leader to complete and submit an essay for corrective training; Being derelict in the performance of his duties on or about 29 September 2015; Violating a general regulation on divers occasions by failing to keep his face clean shaven; and Negligently discharged his service rifle on or about 25 July 2015 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 March 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 October 2014 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 1 year, 5 months, 6 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Several negative counseling statements for various acts of misconduct and performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 18 November 2015, which shows the applicant was diagnosed with an Axis I for adjustment disorder with mixed anxiety and depressed mood. It was noted that the applicant met the medical retention requirements of Chapter 3 paragraph of AR 40-501 and did not meet the requirement of a medical board. However, he had more than 30 days of treatment to include Cognitive Behavioral Therapy and supportive interventions and continue to demonstrate psychological distress related to two identifiable stressful life events related to being in the military. The applicant screened negative for PTSD, mTBI, and sexual assault. The applicant was mentally sound and able to appreciate any wrongfulness in his conduct and to conform his conduct to the requirements of the law. The applicant was considered accountable for his actions and subject to the normal channels of counseling and discipline. The applicant had the mental capacity to understand and participate in board or any other administrative proceedings. The applicant was psychiatrically cleared for Chapter 5-17 at the time. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; and statement from Veterans Service Officer, Jefferson County. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 "JKN" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKN" 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, a change of his narrative reason for discharge to convenience of the government, and a change to his reentry eligibility (RE) code to 1. 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 was separated under the provisions of Chapter 14, paragraph 14-12c(1), 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 (Minor Infractions)," and the separation code is "JKN." 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 appropriate RE code is 3. There is no provision for any other reason to be entered under this regulation. The applicant assisted by a Veteran's Service Officer seeks relief contending, that he did not receive an honorable discharge due to sheer prejudices and reprisal by his chain of command. He believes that because of his ethnicity and language barrier, he was discriminated against, as he was often mocked and made fun of by members of his own platoon. Because of his current discharge he has been prevented from utilizing his education benefits or reenlisting should he desire to. 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 he did not receive an honorable discharge due to sheer prejudices and reprisal by his chain of command in fact, the applicant's numerous negative counseling statements justified the discharge for misconduct minor infractions. 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. It should be noted; eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. Also, if reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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 character of the applicant's discharge is commensurate with his overall service record. 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 August 2018, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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 AR20170009870 1