1. Applicant's Name: a. Application Date: 14 June 2017 b. Date Received: 21 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 and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, was found guilty of an AWOL offense by a special court-martial on 24 June 2009, and received a sentence of 170 days of confinement. Upon completing the 170 days of confinement, the applicant was returned to duty to continue service. However, a few months later, was quickly discharged for the AWOL offense. The applicant has since learned that Article 44 of the UCMJ instructs on double jeopardy. Accordingly, the applicant was punished twice for the same incident that had a dramatic effect on life. The military judge saw the applicant fit to return to service, but the Army discharged the applicant for the same offense. Therefore, the DD Form 214 should reflect a change. 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 and Substance Use Disorder. The applicant is 30% service-connected for Neuroses and Anxiety from the VA. The VA has also diagnosed the applicant with Chronic Pain and Tobacco Use Disorder. In summary, the applicant does 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 21 August 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 (AWOL) / AR 635-200, Paragraph 14-12c(1) / JKD / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 26 March 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 March 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent without leave on 15 November 2007, until 12 (sic) April 2008, and on 25 April 2008, until 2 April 2009. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 March 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 March 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 January 2007 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 8 months d. Prior Service / Characterizations: RA (9 March 2004 to 24 January 2007) / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM-2; NDSM; KDSM; ASR; OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 8 November 2007, for failing to go to his appointed place of duty at the prescribed time on 22 October 2007, being derelict in the performance of his duties on 24 October 2007, disobeying an NCO on 24 October 2007, being disrespectful in deportment towards his first sergeant, and wrongfully using marijuana on two separate occasions on 7 September 2007 and 7 October 2007. The punishment consisted of a reduction to E-1, forfeiture of $650 pay per month for two months (suspended), 45 days of extra duty, and 30 days of restriction. Special Court-Martial Order 28 with its associated documents (Charge Sheet and Report of Result of Trial), dated 3 December 2009, shows that on 24 June 2009, the applicant was found guilty of Charge I, violating Article 86, UCMJ, for being absent from his unit without authority on 15 November 2007, and remained absent until 21 April 2008, and again on 25 April 2008, and remained absent until 2 April 2009, and Charge II, violating Article 134, UCMJ, for breaking restriction on 15 November 2007. The sentence consisted of 170 days of confinement. Confinement Order, dated 24 June 2009, shows the applicant was placed in confinement, and an Inmate's Release Order, shows the applicant was released from confinement upon completing his sentence on 8 November 2009. Mental Status Evaluation, dated 4 February 2010, indicates the applicant was cleared for any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: 505 days (AWOL: on 15 November 2007, until 2 April 2009) / The applicant was apprehended by civil authorities on 23 March 2008; however, DA Form 4187 (Personnel Action), dated 20 April 2009, indicates the applicant surrendered to military authorities at Fort Sill, OK on 2 April 2009. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 25 January 2010, indicates the applicant and examiner noted behavioral health issues and treatment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 14 June 2017; Report of Result of Trial, dated 24 June 2009; and DD Form 214. 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 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. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. 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 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 that he was punished twice for the same offense. Once by a special court-martial, and again by the discharge he received. An administrative separation proceedings is an administrative action under the provisions of AR 635-200, while courts-martial proceedings are judicial processes within the guidelines of the Manual for Courts-Martial. Administrative separation proceedings are administrative actions in nature for Soldiers who do not conform to required standards of discipline and performance and Soldiers who do not demonstrate potential for further military service to avoid the high costs in terms of pay, administrative efforts, degradation of morale, and substandard mission performance. Factors such as records of conviction by court-martial are considered in the administrative separation proceedings. Therefore, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. The applicant contends his separation should be changed. 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 present any behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues symptoms existed. 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 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 21 August 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 AR20170013990 1