1. Applicant's Name: a. Application Date: 31 October 2017 b. Date Received: 2 November 2017 c. Previous Records Review: 21 March 2017, AR20160008346 d. 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. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, his discharge was improper, inequitable, and not supported by facts. Because the Army improperly discharged him based on impropriety, the discharge was unequivocally inequitable, and it was arbitrary and capricious. (The counsel provided a lengthy brief on the circumstances and events surrounding the underage drinking and assault, and the subsequent FG Article that led to the applicant's discharge-the characterization and narrative reason do not fit the crime. The brief also detailed the applicant's background and an analysis of the facts surrounding the inequitable and improper discharge.) The applicant accepted responsibility for his actions and complied with the punishments, and desired to move forward with his military career, but he was not provided that chance-also, without a chance to rehabilitate and prove himself, although he was transferred to another unit, like a rehabilitative transfer. It was fundamentally unfair that he was the only Soldier disciplined for the misconduct. The mistake, a fight between drunken Soldiers that was racially and emotionally provoked that he made was at age 19, which marked him for life. Consideration of previous UCMJ punishments from his conduct in Korea appears contrary to policy, when he did not commit an assault or fought with another Soldier while there. The conclusory statement by the unit commander that the applicant would continue to fail at conducting himself as a Soldier is unfounded as he was never provided the opportunity to rehabilitate himself, not received any developmental counseling by his chain of command. Moreover, the unit commander only knew him for 15 days and the separation was initiated eight days after the imposition of his FG Article 15, and while he was counseled the night of the incident, multiple Army Regulations that state Soldiers shall be given a chance to rehabilitate were ignored. Although he was young and immature, he was not beyond rehabilitation-he received no reasonable chance, in light of his immaturity and poor judgment on the night of the incident that led to his discharge. The discharge immensely impacted him with a life ahead of him. It is difficult for him to obtain employment and he is ineligible for the Post 9/11 GI Bill. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant did not have a medical or behavioral health condition that was mitigating for the offenses which led to his separation from the Army. A review of electronic military medical records revealed diagnoses of Alcohol Abuse, Depression, and a Substance Use Disorder; however, these are not considered mitigating factors for his misconduct leading to his early separation.SM was first seen by ASAP in April 2010 as a Command Referral for underage drinking. He attended group therapy for 3 weeks. Upon PCSing to Ft. Stewart, SM was seen by ASAP in August 2010. The need for treatment was identified upon in-processing, since his time in ASAP in Korea was seen as incomplete. He was informed that he was not formerly discharged from previous ASAP and that he needed to complete the program. SM was recommended to attend ASAP at least once per week; however, he did not feel that he should have to and denied issues with alcohol. He was enrolled and completed ASAP program on 25 October 2010. Mental Status Evaluation dated 8 December 2010 indicated SM was being chaptered for underage drinking, an assault of a soldier, and being late to work on more than one occasion. He was diagnosed with having a Phase of Life Problem. He participated in ASAP for a second time from December 2010 until March 2011. SM attended 5 Behavioral health sessions between February and March 2011 for symptoms of depression in response to military/occupational stressors and his pending discharge. In a Personal Appearance hearing conducted at Arlington, VA on 21 May 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: 10 March 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: By an undated memorandum (2) Basis for Separation: The applicant was informed of the following reasons: On 5 December 2010, he assaulted SPC C.A.M On 5 December 2010, he consumed alcohol while under the age of 21. He received a FG Article 15 for the aforementioned offenses. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Documented by an undated memorandum (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 February 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 November 2008 / 4 years b. Age at Enlistment / Education / GT Score: 17 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92A10, Automated Logistical Specialist / 2 years, 4 months, 5 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 5 December 2010, indicates the applicant was the subject of an investigation for simple assault-consummated by a battery and underage drinking. Negative counseling statement for underage drinking and committing an assault on another Soldier; and being informed of the initiation of separation. Report of Mental Status Evaluation, dated 8 December 2010, indicates the applicant was cleared for any administrative action deemed appropriate by his command. An "Axis I" diagnosis shows "Phase of Life Problem V62.89." FG Article 15, dated 12 January 2011, for committing an assault on 5 December 2010, and consuming alcoholic beverage while under the age of 21 on 5 December 2010. The punishment consisted of forfeiture of $733 pay per month for two months (suspended), and 45 days of extra duty and restriction. Memorandum for Record, dated 19 January 2011, rendered by the unit commander, provided a summary of the applicant's previous UCMJ actions while stationed in Korea prior to his current unit, and had a "'clean slate'" but chose to make a third mistake in less than a year. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 15 December 2010, indicates the examiner noted that the applicant was counseled for anger management, and that he was in the ASAP program. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 31 October 2017; counsel-authored brief; and Veterans Advocacy Law Clinic letter, dated 8 May 2018. 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 and to change the narrative reason for his discharge. 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 incidents of misconduct, the applicant compromised the special trust and confidence placed in a Soldier, and he knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. 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 numerous contentions as bases for determining the impropriety and inequitable discharge, including the misconduct being the result of racial and emotional provocations, were carefully considered. 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 and/or counsel brief on his behalf 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 and to change the narrative reason for his discharge. The applicant contends the he was racially provoked; however, he had many legitimate avenues through which to report such incident, 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 counsel on behalf of the applicant contends that the applicant accepted responsibility for his actions and complied with the imposition of the FG Article 15 punishments, and desired to move forward with his military career, but he was not provided the chance to rehabilitate and prove himself, although he was transferred to another unit, likely a rehabilitative transfer. Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states that 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. To that effect, before initiating action to separate the applicant, it is noted that the command ensured the applicant was appropriately counseled about the deficiencies, which could lead to separation. However, is also noted that the command, simultaneously, made an assessment of the applicant's potential for becoming a fully satisfactory Soldier after reviewing his conduct at his previous assignment or unit, and the subsequent incidents of misconduct that were made bases for his discharge. Thus the evidence of record established that the applicant was afforded a reasonable opportunity to overcome noted deficiencies after receiving previous UCMJ actions for infractions of underage drinking, being drunk and disorderly, missing formation, and wrongful sexual contact, and upon the applicant's subsequent lapse in judgment, the commander determined that he would continue to fail at conducting himself as a Soldier. Accordingly, as the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. The applicant contends that he was young and immature at the time of the incidents of misconduct and his discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant contends an upgrade and a change to the narrative reason for his discharge would allow him to have better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. 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. Although the applicant did not present any behavioral health issues, a careful review of the available record indicates the applicant's behavioral health issues symptoms existed. 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 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None. b. The applicant presented the following additional contention(s): None. c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a Personal Appearance hearing conducted at Arlington, VA on 21 May 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20170016873 6