1. Applicant's Name: a. Application Date: 11 July 2017 b. Date Received: 17 July 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, the discharge was unjust because the applicant was suffering from an adjustment disorder with mixed anxiety and depressed mood. An upgrade would restore educational benefits. In September 2006, the applicant refused to obey an order by a Lieutenant to physically beat up a prisoner in Afghanistan, because there was no reason to do so. The prisoner was sitting down on the ground inside concertina wire and posed no threat to the Lieutenant or any other Soldier. The applicant was a detained EPW-they were not trying to ascertain any information. The applicant was sent on patrol after refusing to beat up the prisoner. Upon returning, the prisoner was gone. The applicant was moved to the 1SG and the Lieutenant asked for disciplinary action. The applicant was moved back to Bagram and given an unjust Article 15, reduced in rank with loss of pay and returned to rear detachment at Fort Drum. Subsequently, upon being discharged, was diagnosed with Mixed Anxiety and Depressed Mood (claimed as survivor's guilt, nightmares due to combat, anger problems and separation). The applicant felt like being kicked off the team, the unit took away the brotherhood and family away, and from the place the applicant belonged. The applicant's purpose was taken away because of not doing something that was wrong. Compare to Guantanamo Bay, Cuba, the prisoners were beaten for no reason. 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 an Adjustment Disorder and Insomnia. The applicant is 30% service-connected from the VA for Chronic Adjustment Disorder. The VA has diagnosed the applicant with PTSD. In summary, the applicant had a BH diagnosis that was partially 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 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (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: 12 March 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 February 2007 (2) Basis for Separation: The applicant was informed of the following reasons: On 12 February 2007, he received a FG Article for being AWOL, and failing to pay a debt. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 February 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 February 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 February 2004 (per enlistment contract and ERB reflecting an ETS date of 11 February 2009 / 5 years; however, DD Form has 10 March 2004 as date entered active duty b. Age at Enlistment / Education / GT Score: 26 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Afghanistan (12 February 2006 to 11 November 2006) f. Awards and Decorations: AAM; NDSM; ACM; GWOTSM; OSR; NATO MDL; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 13 February 2007, for being AWOL on 11 December 2006, and remained absent until 9 January 2007, and failing to pay a debt of past due payments to Pioneer Military Lending between 1 August 2006, and 16 January 2007. The punishment consisted of a reduction to E-1, forfeiture of $650 pay per month for two months (suspended), and 45 days of extra duty and restriction. i. Lost Time / Mode of Return: None recorded on DD Form 214 / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 25 January 2007, indicates the applicant was psychiatrically cleared for administrative action as deemed appropriate by his command. It also reported that at the time, the applicant endorsed some PTSD-like symptoms (nightmares, sleep difficulty, irritability) as he served in Afghanistan as an infantryman and exposed to numerous traumatic events. Report of Medical History, dated 19 February 2007, indicates the applicant noted behavioral health issues. Applicant's documentary evidence: VA Rating Decision, dated 12 July 2007, indicates the applicant was granted an evaluation of 30 percent for "Service connection ... adjustment disorder with mixed anxiety and depressed mood (claimed as survivors' guilt, nightmares due to combat, anger problems, and separation)." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 11 July 2017; DD Form 214; VA Rating Decision, dated 12 July 2007; and VA letter, dated 23 July 2007. 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. 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 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's contentions regarding his behavioral health issues; in that, he was suffering from an adjustment disorder with mixed anxiety and depressed mood, were carefully considered. 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 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. The applicant contends his discharge was unjust because he received an unjust Article 15 for disobeying an order. 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. 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 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / 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 AR20170014131 1