1. Applicant's Name: a. Application Date: 18 July 2017 b. Date Received: 26 July 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of general (under honorable conditions) discharge to honorable, a change to narrative reason for discharge, and a change to reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that the failure of the command to consider the overall service record in conjunction with the nature of the violations, their proximity to one another, and the role played by the existing command climate represents an error in equity because the applicant's record of honorable service far outweighs the isolated and minor violations in questions. Further, the resulting involuntary administrative separation based upon a pattern of misconduct involving two isolated incidents over a less than 30 day period represents an error of fact, law procedure, or discretion wholly and unquestionably prejudicial to the applicant. Ultimately, the more important and perhaps more concerning aspect of the applicant's case is the perceived lack of due process and impartiality that should have been exercised in making a decision having such far-reaching implication on one's life. Considerations regarding the applicant's history of being a competent and accomplished Soldier, have never previously received so much as a negative counseling were, by all objective appearance, disregarded. Additionally, the applicant's post-service activity to include pursuit of both an Associates and Bachelor's Degree as well as graduation from the Huston Fire Fighter's Academy with honors lend credibility to the fact that the accusations regarding the incidents in question were inconsistent with the applicant's record of service and achievements. The applicant also contends that the misconduct was the result of a TBI received from an airborne jump a couple months before the Article 15 issues. The applicant also contends that the discharge was improper because of not being afforded a rehabilitative transfer. 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 Occupational Problem and mTBI. The VA has diagnosed the applicant with Major Depressive Disorder. The applicant is 10% service-connected for mTBI. 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 27 March 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 1 September 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 July 2015 (2) Basis for Separation: The applicant was informed of the following reasons: for with intent to deceived, made to Sergeant G.N., an official statement, to wit: his barracks room was clear and empty, "or words to that effect, which statement was totally false, and was then known to his to be so false on 13 April 2015; With intent to deceive, made to Sergeant G.N., an official statement, to wit: "The barracks officer was booked and he had to schedule an appointment to clear his room on 23 April 2015," or words to that effect, which statement was false in the Sergeant G.N. rescheduled his barracks room clearing appointment to an earlier date without any booking issues, and was then known by him to be so false on 13 April 2015; Without authority, went from his appointed place of duty, to wit: 2305 hours motor pool guard on 23 May 2015; and Was disrespectful in deportment toward Sergeant D.P., a noncommissioned officer, then know by him to be a noncommissioned officer, who was then in the execution of his office, by rolling his eyes and walking away while he was talking to him on 23 May 2015. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 July 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 March 2015 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M1P, Motor Transport Operator / 3 years, 1 month, 22 days d. Prior Service / Characterizations: RA, 10 July 2012 to 3 March 2015 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, AAM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, documents submitted by the applicant from the Department of Veterans Affairs, dated 19 April 2018, show the applicant was awarded 10 percent service connected disability for traumatic brain injury. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; brief in support of his application; enlistment contract; enlisted record brief, schedule and credits; certificate of completion of basic fire fighter certification; college transcripts; basis for a Chapter 14; honors list certificate; and Department of Veterans Affairs decision letter, dated 19 April 2018, which shows the applicant was awarded 10 percent service connected disability for traumatic brain injury. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since his discharge he has pursued of both an Associates and Bachelor's Degree as well as graduation from the Huston Fire Fighter's Academy. 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 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, and pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable, a change to his narrative reason for discharge, and a change to his reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 she should have been retained on Active duty. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." 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 seeks relief contending, in effect, that the failure of his command to consider his overall service record in conjunction with the nature of the violations, their proximity to one another, and the role played by the existing command climate represents an error in equity because the applicant's record of honorable service far outweighs the isolated and minor violations in questions. Further, the resulting involuntary administrative separation base upon a pattern of misconduct involving two isolated incidents over a less than 30 day period represents an error of fact, law procedure, or discretion wholly and unquestionably prejudicial to the applicant. Ultimately, the more important and perhaps more concerning aspect of the applicant's case is the perceived lack of due process and impartiality that should have been exercised in making a decision having such far-reaching implication on one's life. Considerations regarding the applicant's history of being a competent and accomplished Soldier, have never previously received so much as a negative counseling were, by all objective appearance, disregarded. Additionally, the applicant's post-service activity to include pursuit of both an Associates and Bachelor's Degree as well as graduation from the Huston Fire Fighter's Academy with honors lend credibility to the fact that the accusations regarding the incidents in question were inconsistent with the applicant's record of service and achievements. The applicant's contentions were noted; the applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered and the applicant is to be commended. Also the applicant's post-service accomplishments have been noted as outlined on the application and in the documents with the application. 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 that his in-service accomplishments were not taken into consideration prior to his discharge or that he was improperly discharged. Additionally, although the applicant claims his discharge was the result of an isolated incident; the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization. As note in the applicant's legal brief, the command attempted to assist the applicant in performing and conducting himself to Army standards by the imposition of non-judicial punishment. It appears as a result of the applicant's failure to respond appropriately to these efforts separation action was initiated. The applicant also contends that his misconduct was the result of a TBI he received from an airborne jump a couple months before his Article 15 issues. The contentions was noted; however, the available record does not support this contention. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that this condition rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. 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 27 March 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 AR20170014584 1