1. Applicant's Name: a. Application Date: 3 August 2017 b. Date Received: 7 August 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the applicant had some remarkable support for retention, which included the applicant's chain of command who recommended suspension of this separation action. He also testified on the applicant's behalf and provided some very positive testimony concerning the applicant's performance. Several other leaders also testified on the applicant's behalf, which given the circumstances, was unusual and suggests that these leaders saw something special and noteworthy in the applicant. Counsel contends, when the applicant joined the active Army, the wife was pregnant and the new unit was preparing to deploy. The applicant discovered after entering active duty that there was a necessity to complete a reattachment of the Achilles tendon and removal of a bone spur. Following surgery, the applicant was advised to seek an MOS reclassification, but having been trained as an infantryman and knowing the new company was about to deploy, the applicant eschewed an MOS reclassification and chose to deploy with the company despite chronic pain and the need for rehabilitation. Two weeks after the first son was born, the applicant deployed and while deployed, regularly received physical therapy. While deployed, the applicant's wife faced a real challenge. Her ailing husband was gone just two weeks after their son was born. The applicant's initial misconduct, an "assault," occurred right after the applicant had spoken to the wife and learned that their infant son was very sick with an apparent reaction to medicine. The second incident occurred right after applicant was confronted with the loss of a fellow Soldier. While the applicant's actions were inappropriate it is also clear that at the time, the applicant was emotionally distraught, in chronic pain, and was psychologically in a bad place. Later the VA would diagnose the applicant with PTSD and mTBI. Since discharge, the applicant has earned an Associate's Degree and Bachelor's Degree in Criminal Justice. The applicant regularly attends church and although the applicant and wife had an amicable divorce in December 2012, the applicant has maintained a positive relationship with her and the two sons, and they have even discussed remarriage. In 2012, the applicant was hired as a police officer in North Carolina and has become an outstanding police officer. The applicant states, in many ways, is better because of this separation, as it has forced the applicant to take stock in life and address some of the unresolved issues that arose from combat deployments. The applicant forced oneself to deal with issues of anger and depression and found that faith played a major factor in mitigating the symptoms of PTSD and mTBI. The applicant also found education and professional training gave insight and understanding and helped ameliorate these symptoms. The applicant's record of service reflects positively on the Army. The two deployments, the discipline and structure and training the applicant received have been put to good use as a police officer. The applicant handled adversity well and is an example to others. The record suggests that the applicant can and should serve in positions of greater responsibility and would like to apply to the North Carolina Bureau of Investigation or the Federal Bureau of Investigation. However, the discharge remains an impenetrable barrier, but the applicant's actions, contributions to the community and the ability to mature, grow and develop as an individual and as a professional have earned the applicant reconsideration. Counsel, further details contentions in an allied legal brief provided with the application. 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 Problems and followed by FAP. The VA has diagnosed the applicant with PTSD. The applicant is 30% service-connected for PTSD. In summary, although the applicant has 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 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 15 January 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 October 2008 (2) Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: On or about 12 March 2008, he assaulted a noncommissioned officer and on or about 4 September 2008, he assaulted a fellow Soldier. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 October 2008 (5) Administrative Separation Board: On 1 December 2008, the applicant was notified to appear before an administrative separation board and advised of his rights. On 16 December 2008, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge under the provisions of AR 635-200, 14-12b, Pattern of Misconduct, with characterization of service of general (under honorable conditions). On 16 December 2008, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of general (under honorable conditions). (6) Separation Decision Date / Characterization: 19 December 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 April 2006 / 3 years, 11 weeks b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 7 years, 9 months, 18 days d. Prior Service / Characterizations: ARNG, 28 March 2001 - 17 April 2006 / HD IADT, 2 July 2002 - 28 October 2002 / HD (Concurrent Service) OAD, 1 October 2003 - 14 February 2005 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Iraq (25 February 2004 - 31 December 2004) f. Awards and Decorations: ARCOM-2, NDSM, GWOTEM, GWOTSM, ASR, AFRMM, ICM-BSS / The applicant's service record reflects he was awarded the AAM, however, the award is not reflected on his DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 19 March 2008, for assaulting a Noncommissioned officer, by pushing him in his chest with his hands (12 March 2008). The punishment consisted of a reduction to E-3 (suspended); and, restriction for 45 days. Charge Sheet, dated 19 September 2008, reflects the applicant was charged with violating Article 128, UCMJ, for unlawfully punching PFC T in the face with a closed fist. Report of result of Trial, reflects the applicant was tried in a Summary Court-Martial on 27 September 2008. The applicant was charged with violation of Article 128, Assault Consummated by a Batter. The applicant was found guilty, inconsistent with the plea. The sentence adjudged: Reduction to the grade of Private First Class and Hard Labor without Confinement for 30 days. Report of Mental Status Evaluation, dated 20 November 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA disability rating decision, dated 23 May 2017, which reflects the applicant was rated 30 percent disability for PTSD and 10 percent for Post-Concussion Syndrome with Insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has earned his Associate's Degree and Bachelor's Degree in Criminal Justice. He regularly attends church and was hired as a police officer in North Carolina. 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, paragraph 12b, pattern of misconduct. 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 counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant's record of service, 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 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 narrative reason for the discharge should be changed. However, 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 regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that he had good service which included a combat tour. 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. The applicant is to be commended for his accomplishments. The applicant contends the VA has granted him a service connected disability for PTSD. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record reflects that on 20 November 2008, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 AR20170016012 7