1. Applicant's Name: a. Application Date: 29 August 2017 b. Date Received: 7 September 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, was held past the ETS date for court-martial purposes. The court-martial sentence did not include a discharge from the Army. After the punitive action, the applicant was administratively discharged beyond the ETS with proper HDQA approval. Per legal counsel, the applicant should have not been administratively separated because no extension to administratively separate the applicant after the original ETS was obtained from HQDA as required by AR 635- 200, paragraph 1-26. 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 Adjustment Disorder with Anxiety. The VA has diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. The applicant is 30% service-connected through the VA. In summary, although the applicant had a BH diagnosis, it is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 3 April 2019, 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 August 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 2 August 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 February 2013 / 4 years (Any extension to the period of enlistment was at the request and for the convenience of the government per DD Form 214- GCM Court-Martial Order 9, dated 7 September 2017, shows the applicant was convicted of an assault charge on 5 July 2017, and in pertinent part, his sentence included a 45-day confinement. The ERB shows the applicant's ETS date was adjusted to 18 August 2017 (inclusive of the 45-days confinement sentence from 5 July 2017.) b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support Systems Specialist / 4 years, 4 months, 22 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: General Court-Martial Order Number 9, dated 7 September 2017, indicates that on 5 July 2017, the applicant was found guilty of violating Article 128, UCMJ, for unlawfully striking PFC I.R.C. on the face with his hand. The adjudged sentence of a reduction to E-1, forfeiture of $700 pay per month for one month, and confinement for 45 days was approved on 7 September 2017. On 12 March 2018, the Criminal Law Division, Office of the Judge Advocate General, completed the examination of the General Court-Martial and found sufficient legal evidence supported the approved findings of guilty and the sentence, and determined the findings and sentence to be final and conclusive. i. Lost Time / Mode of Return: 38 days (Military confinement from 5 July 2017 to 11 August 2017) / The applicant was released upon completing his confinement sentence. j. Diagnosed PTSD / TBI / Behavioral Health: An Informal Physical Evaluation Board (PEB) Proceedings indicate that the PEB which convened on 18 May 2016, included in the proceedings at Section IV, the applicant's medical condition involving behavioral health issues, such as an adjustment disorder with mixed anxiety and depressed mood 5. APPLICANT-PROVIDED EVIDENCE: Online application, and memorandum, dated 18 July 2017, rendered by the applicant's defense counsel with the Trial Defense Service. 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. 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 for his discharge. The applicant's available record of service, and the issues and document submitted with his application were carefully reviewed. After carefully examining the applicant's available military records, there are insufficient mitigating factors to make a determination upon the applicant's quality of service and the merit of his issues. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was digitally authenticated by the applicant's signature and the separation authority's decision memorandum. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. 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., the complete discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. 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 discharge was unjust because he was held past his ETS date for court-martial purposes, but that the sentence did not include a discharge from the Army; that after the punitive action, he was administratively discharged beyond his ETS with proper HDQA approval; and per his legal counsel, he should have not been administratively separated because no extension to administratively separate him after his original ETS, was ever obtained from HQDA as required by AR 635-200, paragraph 1-26. 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. Further, applicable regulation, such as, AR 635-200, paragraph 1-22, stipulate, in pertinent part, that a "Soldier may be retained after his ... term of service has expired when ... an investigation of his ... conduct has been started with a view to trial by court-martial" or "charges have been preferred." ... "A Soldier who is awaiting trial or result of trial by court-martial when he ... would otherwise be eligible for discharge or release from AD will not be discharged ... until final disposition of the court-martial charges." Paragraph 1-31, when retained in service awaiting trial or result of trial, the effective date of discharge depends upon the result of trial or the disposition of the court-martial case. And that a Soldier who is convicted and sentenced to confinement and forfeiture will be discharged on the adjusted ETS; in which, the adjusted ETS date will be computed by adding to the date of release from confinement or completion of court-martial case. The General Court-Martial Order 9 shows the applicant was sentenced to 45-day confinement and that the military confinement commenced on 5 July 2017. Thus his ETS date was adjusted as 18 August 2017, as reflected on his ERB, and his DD Form 214 shows that his extension of service was for the convenience of the government. Accordingly, paragraph 1-26, retention for miscellaneous reasons is inapplicable to the applicant's case, because his adjusted ETS date was not for the purpose of an administrative separation proceedings. 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. Although the applicant did not raise any behavioral health issues, a careful review of the available records indicate the applicant's behavioral health issues symptoms existed. If the Board determines the applicant's behavioral health issues were significant contributing factors to any misconduct that led to his separation, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. Based on the available 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 3 April 2019, 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 AR20170013503 1