1. Applicant's Name: a. Application Date: 12 June 2017 b. Date Received: 6 July 2017 c. Previous Records Review: 23 August 2013, AR20120004365 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under other than honorable conditions) discharge to honorable and to change the narrative reason and its reentry code for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, a comprehensive record is provided for assessing the legality and equity of the applicant's onerous UOTH discharge, an effect on matters of propriety and equity of discharge. The applicant was an exemplary Soldier, but also suffered from attention deficit disorder, depression, and acute stress disorder as a single Soldier and a parent raising a special-need daughter. The applicant lived a hectic, stressful existence, and was unsustainably stretched between the demands of military duties and personal responsibilities. (The counsel detailed the events and circumstances surrounding the applicant's discharge.) Despite the stigma of an UOTH discharge, the applicant's character demonstrated an outstanding post-service conduct: has remarried; regained custody of the daughter, who is doing well; and has moved ahead in a good job that offers a promising career. The applicant has succeeded with an ongoing effort of making it up to the daughter. An upgrade would enable the applicant to receive veterans' benefits to better allow the ability to move ahead without the pervasive UOTH stigma. (The counsel presented detailed arguments based on propriety and equity in support of an upgrade.) The prevailing past and current factors should be considered, and it "is a cruel irony that the daughter is being further punished by the consequences" of the applicant's UOTH discharge, as she will for many years remain dependent on the applicant for full support. Therefore, the UOTH is inequitable and excessive. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of ADHD, Depression, Adjustment Disorder, and Partner Relational Problem. Post-service, the applicant does not have a service-connected rating and has not received treatment at the VA. In summary, the applicant did not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 6 March 2019, and by a 3-2 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 11 October 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 July 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On 28 July 2011, Family Advocacy and CID were notified by summer camp teachers that the applicant's daughter had a large bruise on her forearm. After an investigation, the applicant admitted that he struck his daughter, who suffers from Attention Deficit Hyperactivity Disorder (ADHD) and was enrolled in the Exceptional Family Member Program (EFMP), on her arm with a belt. On 5 March 2012, his daughter reported to personnel at an Elementary School that he had struck her with a belt the previous night. After an investigation, he admitted that he had struck her on her arms, legs, and buttocks with a belt after she refused to brush her teeth. (3) Recommended Characterization: The unit commander recommended a General (Under Honorable Conditions) characterization, and the brigade commander recommended an Under Other Than Honorable Conditions characterization discharge. (4) Legal Consultation Date: 24 July 2012 (5) Administrative Separation Board: 26 September 2012 / Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 1 October 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 June 2008 / 4 years, 11 months (extended his enlistment by 11 months on 27 January 2012) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68R10, Veterinary Food Inspector / 7 years, 4 months, 16 days d. Prior Service / Characterizations: RA (26 April 2005 to 16 June 2008) / HD e. Overseas Service / Combat Service: Japan / None f. Awards and Decorations: AAM-3; AGCM-2; NDSM; GWOTSM; NCOPDR; ASR; ASUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 2 December 2011, for unlawfully striking a child under the age of 16 years, on the arm with a belt on 27 July 2011. The punishment consisted of a reduction to E-3 (suspended), 7 days of extra duty, 14 days of restriction, and an oral reprimand. FG Article 15, dated 26 April 2012, for unlawfully striking his daughter, a child under the age of 16 years, on the arms, legs, and buttocks with a belt on 4 March 2012. The punishment consisted of a reduction to E-2. Negative counseling statements for an involuntary separation being initiated due to two incidents resulting in Article 15 actions; being under CID investigation for a third incident of potential child abuse related incident, the first occurring two years prior and the second occurring six months prior; and admitting to hitting his daughter multiple time with a belt. Report of Proceedings by Board of Officers with its summarized proceedings indicate that the administrative separation board that convened on 26 September 2012, reported their findings and recommendations: Findings: the allegation that on 4 March 2012, the applicant unlawfully strike his daughter, a child under the age of 16 years, on the arms, legs, and buttocks with a belt was supported by a preponderance of evidence. The allegation that on 27 July 2011, the applicant unlawfully strike his daughter, a child under the age of 16 years, on the army with a belt was supported by a preponderance of evidence. Recommendations: That the applicant be separated from the US Army with an under other than honorable characterization of service. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 11 July 2012, indicates the applicant and the examiner noted behavioral health issues. Health Records, dated 4 August 2011, reflects the applicant diagnosis and treatment for an "Adjustment Disorder" and "Attention Deficit Disorder without Hyperactivity." Report of Mental Status Evaluation, dated 16 July 2012, indicates an "AXIS I" diagnosis of an "Adjustment Disorder." Applicant's documentary evidence: Health Records, dated 12 March 2012, reflects an "AXIS I" diagnosis of "Adjustment Disorder with Disturbance of Emotions and Conduct." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the review of Discharge), dated 12 June 2017, with counsel cover letter, dated 12 June 2017; DD Form 214; and counsel- authored petition with index of exhibits addressed in the petition (Exhibits 1 through 29). Additional evidence: Letter (change of representation), dated 8 January 2019. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that despite the stigma of his UOTH discharge, his character demonstrated an outstanding post- service conduct: he has remarried; he has regained custody of his daughter, who is doing well; and he has moved ahead in a good job that offers a promising career. The applicant added that he and his wife are very active in their church, he volunteers for student book reading and other educational and community events, and he has continued his education in information technology in programs sponsored by his employer. 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 14-12c, 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 requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason and its reentry code 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 serious incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. The applicant's numerous contentions addressing the impropriety and inequitable issues of his unjust discharge were carefully considered. 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 was 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. In consideration of the applicant's in-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 applicant contends he suffered from attention deficit disorder, depression, and acute stress disorder as a single Soldier and a parent raising a special-need daughter. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed and the applicant contends they were contributing factors toward living a hectic and stressful existence, and was unsustainably stretched between the demands of his military duties and personal responsibilities. 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 also contends that an upgrade would enable him to receive his veterans' benefits to better allow both him and his daughter to move ahead without the pervasive UOTH stigma. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Insofar as eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill, it 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 applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. 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 also requests a change to his reentry code. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. 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 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 6 March 2019, and by a 3-2 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 AR20170013302 2