1. Applicant's Name: a. Application Date: 6 July 2017 b. Date Received: 11 July 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge and its corresponding codes. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the request is based on reasons of equity and propriety. The applicant who had four combat deployments, began struggling psychologically after his last deployment. He experienced extreme levels of stress and anxiety that caused him "'black outs.'" He was referred for counseling. In June 2016, he received a GOMOR for having a socially inappropriate interaction with a new recruit and violating the "buddy policy," while serving as a recruiter. His brigade commander recommended the GOMOR be filed locally. The brigade commander recommended to remove the applicant from recruiting due to his unacceptable actions, but that he be allowed to recover from "'what appears to be an isolated and uncharacteristic lapse of professionalism and judgment.'" Subsequently, the applicant accepted a conditional waiver of a separation board and was discharge with a GD, after serving nearly 16 years. The counsel indicated, it is within the purview of the Board to correct an error or remove an injustice by upgrading, and changing the narrative reason and its corresponding codes; in that the chain of command made a material error of fact by misunderstanding the applicant's intent during his interactions with the Private (the counsel described the events and circumstances surrounding the applicant's interactions), which showed that there was no intent of harassing but rather to encourage and motivate the Private, and "to prevent a basic training loss." The applicant was also "clearly struggling with the effects of PTSD," and the side effects of his medication, which were not considered during the GOMOR and separation proceedings. On equity bases, the counsel listed several factors in consideration of the applicant's honorable service record that included the awards and recognitions he received. He is also still actively involved in his local community by volunteering. He is pursuing a bachelor's degree in business management. The totality of his service and years of struggling with PTSD, when weighed against a minor infraction, warrants an upgrade. Thus upon examining the totality of the circumstances, including his positive investment in his local community, extensive combat service, and leadership contributions to the Army as a highly rated NCO, his discharge requires correcting. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, AHLTA, and JLV, the applicant does not have a mitigating Behavioral Health disorder. While the applicant states he was diagnosed with PTSD by the military in 2005, there is no documentation of this diagnosis in his military medical records. The diagnosis of PTSD in his civilian records was made based on his report of having been diagnosed with PTSD by the military in 2005. There is no documentation of the applicant being comprehensively assessed for PTSD in any of the applicant provided civilian medical documents. Additionally, due to the lack of evidence in the file regarding the nature of the misconduct, a mitigating Behavioral Health disorder cannot be associated with any instance of misconduct. In a records review conducted at Arlington, VA on 4 April 2018, 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: 31 January 2017 c. Separation Facts: NIF (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: NIF (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 December 2012 / Indefinite b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-7 / 79R40, Recruiter, and 19K40 M1 Armor Crewman / 15 years, 11 months, 4 days d. Prior Service / Characterizations: RA (27 February 2001 to 1 March 2003) / HD RA (2 March 2003 to 2 June 2005) / HD RA (3 June 2005 to 20 July 2007) / HD RA (21 July 2007 to 13 December 2012) / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (11 May 2003 to 28 July 2004), (16 April 2005 to 17 January 2006), (10 March 2007 to 26 April 2008), and 17 October 2009 to 14 September 2010) f. Awards and Decorations: BSM; ARCOM-5; AAM-4; AGCM-5; NDSM; ICM-5CS; GWOTEM; GWOTSM; NCOPDR-2; ASR; OSR-4; CAB; MUC; VUA g. Performance Ratings: Six NCOERs rendered during period of service under current review: 21 January 2012 thru 20 January 2013, Among the Best 21 January 2013 thru 20 January 2014, Among the Best 21 January 2014 thru 20 January 2015, Among the Best 21 January 2015 thru 1 October 2015, Among the Best 2 October 2015 thru 21 September 2016, RFC, Did not Meet Standard 22 September 2016 thru 27 January 2017, Met Standard h. Disciplinary Action(s) / Evidentiary Record: Separation file NIF-there is no record of any negative counseling statement or action under the UCMJ. The applicant was discharged at the rank of SFC/E-7. General Officer Memorandum of Reprimand and its associated documents, dated 3 June 2016, indicates the applicant was reprimanded for engaging in social activity of a personal and unofficial nature with PVT V, subject of recruiting efforts, that he sent her inappropriate text messages and requested pictures of her tattoos sent to his personal cell phone, that he violated the buddy policy on several occasions, and that he transported PVT V in his privately owned vehicle without a qualifying person present. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Medical records, dated 29 August 2011, 6 June 2012, 7 October 2013, and 6 January 2016, indicate the applicant had diagnoses and treatment for PTSD and behavioral health issues. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 6 July 2017; attorney-authored brief; DD Form 214; ERB; medical records, dated 29 August 2011, 6 June 2012, 7 October 2013, and 6 January 2016; GOMOR and its associated documents; information sheet on Paxil Side Effects; nine NCOERs; five character reference/supporting statements; and applicant's resume. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that the applicant is still actively involved in his local community by volunteering, and he is pursuing a bachelor's degree in business management. 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 and its corresponding codes. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. 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. 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 Misconduct), 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 were fully protected throughout the separation process. The applicant's contentions regarding his behavioral health issues which included experiencing extreme levels of stress and anxiety issues causing blackouts, and suffering from PTSD symptoms, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder 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 the discharge was unjust based on the totality of the circumstances, the totality of his service and years of struggling with PTSD, the chain of command making a material error of fact by misunderstanding the applicant's intent during his interactions with the Private and that there was no intent of harassing but rather to encourage and motivate the Private, and "to prevent a basic training loss." 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 may have been 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. 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. In consideration of the applicant's service accomplishments and quality of his service prior to any incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 third party statements provided with the application speak highly of the applicant's character and performance, including recognizing 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. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. 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. 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 4 April 2018, 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 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 Code to: No Change f. Change 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 AR20170016120 4