1. Applicant's Name: a. Application Date: 22 August 2017 b. Date Received: 28 August 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant seeks relief through counsel contending, in effect, his service was honorable and meritorious during twelve months deployment to OIF. His combat and racial stress he suffered leading to contemporaneous PTSD and comorbid major depression with psychotic features. He was wrongfully and inequitably separated from the Army. He was denied the one mandatory rehabilitative transfer that may have ameliorated his situation, contrary to the regulations under which he was discharged. The Army wrongfully insinuated itself into the applicant's domestic life, contrary to the JAG instructions to leave it to the civilian authorities. He should have been processed for a medical discharge pursuant to two separate regulations. The regulation required mental evaluation was contradictory, internally inconsistent and insufficient to satisfy the guideline and Chapter 14 purpose. He was wrongfully and inequitably discharged for willful misconduct; his actions were not willful or culpable, they were trauma responses. His discharge was wrongful and inequitable because his disciplinary infractions were a result of his undiagnosed and untreated PTSD, and related major depression and generalized anxiety disorder. His discharge was wrongful and inequitable because it was rendered in contravention of the statute, Hagel Memo and Supplemental instructions. 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 was diagnosed with PTSD and other behavioral health issues. However, due to the nature of the misconduct, PTSD and OBH do not mitigate the offenses of domestic violence, harassment, and assault. The applicant did not have a mitigating medical or behavioral health condition for the offenses that led to his separation from the Army. In a records review conducted at Arlington, VA on 14 September 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 19 January 2011 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 22 November 2010 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; disobeying a commissioned officer x7, making a false official statement, violating a lawful general order x2, domestic violence, disobeying an NCO, disrespecting an NCO x3, dereliction of duty and FTR x3. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 4 November 2010 and 22 November 2010 (5) Administrative Separation Board: On 4 November 2010, the applicant waived consideration of his case by an administrative separation board. On 22 November 2010, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general (under honorable conditions). On 16 December 2010, the applicant was notified to appear before an administrative separation board and advised of his rights. On 12 January 2011, the administrative separation board convened. The applicant appeared with counsel. The board recommended the applicant be discharged with issuance of a character of service of under other than honorable conditions. The approving authority's documentation approving the findings and recommendations of the administrative separation board is not contained in the available records and government regularity is presumed in the discharge process. (6) Separation Decision Date / Characterization: NIF / 19 January 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2008 / 4 years b. Age at Enlistment / Education / GT Score: 20 years / HS Graduate / 86 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 3 years, 12 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, 7 September 2008 to 18 August 2009 f. Awards and Decorations: ARCOM, NDSM, ICM-CS, GWOTSM, ASR, OSR, MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 2 November 2009, relates the applicant was under investigation for domestic, civilian female victim, harassment, physical contact, assault in the third degree, off post. Military Police Report, dated 21 February 2010, revealed the applicant was under investigation for domestic violence, assault in the third degree, reckless endangerment, off post. FG Article 15, dated 5 April 2010, for having received a lawful command from CPT J.D., his superior commissioned officer, to have no contact with his wife, or words to that effect, did willfully disobey the same x2 (22 February 2010 ad 10 March 2010); having received a lawful command from 1LT X., his superior commissioned officer, to sign in with CQ every 4 hours between 0600 to 2200 during non-duty days, or words to that effect, did willfully disobey the same (19 March 2010); having received a lawful command from 1LT X, his superior commissioned officer, to not leave the 2nd brigade footprint, or words to that effect, did willfully disobey the same x2 (21 March 2010 and 22 March 2010); having received a lawful command from 1LT C.C., his superior commissioned officer, to not leave the 2nd brigade footprint and to not drive any POV, or words to that effect, did willfully disobey the same (25 March 2010); and was disrespectful in deportment toward Sergeant Major X. a noncommissioned officer, who was then in the execution of his office, by hanging up the phone on him while he was talking to you (24 March 2010); reduction to PVT / E-1, forfeiture of $723 pay for two months (suspended), extra duty and restriction for 45 days. Military Police Report, dated 16 June 2010, revealed the applicant was under investigation for spouse abuse, civilian female victim, simple assault, consummated by a battery, on post. Military Police Report, dated 9 July 2010, relates, the applicant was under investigation for spouse abuse, civilian female victim, simple assault, obstruction of justice / eluding police officers, wrongful damaging of government property, not commissary property, on post. Military Police Report, dated 10 July 2010, shows the applicant was under investigation for domestic violence, harassment, harassing communication by other than telephone, off post. The applicant received numerous negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 26 August 2010, relates the applicant had an Axis I diagnosis of adjustment disorder with disturbance of conduct. He did not have a severe mental disorder and is not considered mentally disordered. He manifests a long-standing disorder of character, behavior and adaptability that is of such severity so as to preclude further military service. There was no evidence to suggest a thought disorder or a psychotic disorder. He was psychiatrically cleared for any action deemed appropriate by Command. Letter, San Francisco Vet Center, dated 8 May 2014, shows the applicant began experiencing chronic symptoms of depression and difficulties with his social and occupational functioning, began after a pattern of negative experiences while on active duty. The applicant reported he was the only African-American on the team. He reports feeling singled out and humiliated, often being told to do things beneath his rank as an E-3. Marin City Heath Summary, dated 26 September 2014, relates the applicant was diagnosed with PTSD and depressive disorder. VA progress notes, dated 7 October 2015, revealed the applicant was diagnosed with major depressive disorder, recurrent, severe with psychotic features and PTSD. Initial PTSD (revised) Disability Benefits Questionnaire, dated 4 November 2015, indicates the applicant was diagnosed with chronic adjustment disorder, PTSD, major depressive disorder, cannabis use. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); letter, Sword to Plowshares; attorney's brief (11 pages); attorney's letter (three pages); Appendix A, Memoranda for Secretaries of the Military Departments, Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records (BCMRs/BCNR) by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI, five pages); Appendix B, VA, administrative decision (six pages); Appendix C, progress notes (16 pages); Appendix D, letter, San Francisco Vet Center (two pages); Appendix E; Initial PTSD (revised) Disability Benefits Questionnaire (15 pages); Appendix F, VA Claims Intake Center, Janesville WI, medical document (seven pages); Appendix G, Advance Psychiatric Care, P.A. (16 pages); Appendix H, support statement; Appendix I, support statement; Appendix J, support statement; Appendix K, reverse side of general counseling form (two pages); Appendix L, Report of Mental Status Evaluation, (two pages); Appendix M, DD Form 214; Appendix N, three support statements; Appendix O, Skyline College, support statement; and Appendix P, two character letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states through his counsel he is training to become a deacon of the Gospel Fellowship Church. Leaders of that Church attest to his faithful, dependable, trustworthy and committed dedication to the ideals of the church-character traits. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation. 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 14-12b, Pattern of Misconduct. The SPD Code/RE Code Cross Reference Table shows 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 requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation. The applicant's available 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. By the documented pattern of misconduct, the applicant diminished the quality of his service below that meriting a general (under honorable conditions) or an honorable discharge at the time of separation. 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 requests a change to the narrative reason for separation. 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 14-12b, pattern of misconduct. The regulation further stipulates that no deviation is authorized. The applicant seeks relief through counsel contending, his service was honorable and meritorious during twelve months deployment to OIF. 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 further contends, his combat and racial stress he suffered leading to contemporaneous PTSD and comorbid major depression with psychotic features. Although the applicant alleges that he was a victim of racism during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. The record of evidence shows that the applicant submitted documents which indicated he was diagnosed with major depressive disorder, recurrent, severe with psychotic features and PTSD. The applicant also contends, he was wrongfully and inequitably separated from the Army. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. The applicant additionally contends, he was denied the one mandatory rehabilitative transfer that may have ameliorated his situation, contrary to the regulations under which he was discharged. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Furthermore, the applicant contends, the Army wrongfully insinuated itself into the applicant's domestic life, contrary to the JAG instructions to leave it to the civilian authorities. 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. Moreover, the applicant contends, he should have been processed for a medical discharge pursuant to two separate regulations. Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends, the regulation required mental evaluation was contradictory, internally inconsistent and insufficient to satisfy the guideline and Chapter 14 purpose. 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 contention. The applicant further contends, he was wrongfully and inequitably discharged for willful misconduct; his actions were not willful or culpable, they were trauma responses; and his discharge was wrongful and inequitable because his disciplinary infractions were a result of his undiagnosed and untreated PTSD, and related major depression and generalized anxiety disorder. The service record contains no evidence and the applicant did not submit any evidence to support the contention that his mental conditions were the cause and resulted his discharge by reason of pattern of misconduct. Lastly, the applicant contends, his discharge was wrongful and inequitable because it was rendered in contravention of the statute, Hagel Memo and Supplemental instructions. The Hagel memorandum does not prohibit commanders from exercising their authority granted under provisions of AR 635-200. However, the Hagel memorandum gives guidance Military Department Boards for Correction of Military/Naval Records (BCM/NR) for the purposes of upgrading their discharges based on claims of previously unrecognized Post Traumatic Stress Disorder (PTSD). The third party statements provided with the application speak highly of the applicant. 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 14 September 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 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 AR20170016364 1