1. Applicant's Name: a. Application Date: 21 November 2017 b. Date Received: 27 November 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, recognizes the mistake of driving with the spouse at the time to Nashville right in the middle of an argument. This act was misconstrued and seen by others as a kidnap attempt. Both the applicant and ex-spouse explained to the detectives that the applicant did not commit such a crime. The applicant believes that the chain of command did not give the applicant the tools or the opportunity to explain the applicant's side of the story. The applicant had served over four years as an exemplary Soldier and is proud of the service and was planning to have a long career in the Army. The applicant was pushed to leave the unit and subsequently the Army because the chain of command saw the applicant as guilty before due process was conducted. The applicant believes the chain of command just wanted to rid the unit of the applicant in order to bring in a new Soldier to fill the applicant's spot and not deal with the situation. The applicant gave everything to the unit, and received no support in return. The applicant states, the military discharged the applicant because of a civilian conviction, but they never investigated if what was said against the applicant was true. The military tried to chapter the applicant out when first charged, without being convicted of anything. The applicant went in front of the board and presented the case, which included a letter from the victim and presented all awards, certificates and decorations and the board found no reason to have the applicant separated, so the applicant was retained. A week later, the applicant was convicted, but the reason was the applicant was deceived by a civilian lawyer. The applicant believes this because the DA presented the same evidence as in the board hearing, where the applicant was retained. The applicant wants to rejoin the military but is unable because of the code on the discharge, which does not allow the applicant to reenter. The applicant wants to join the military to support the family. The applicant needs to obtain a good job or any type of job where the applicant can be able to support the family and honestly, which the applicant is unable to do with the current discharge. The applicant further details contentions in a self-authored statement provided with the application. The evidence of record reflects the applicant had a prior records review conducted at Arlington, VA on 1 February 2017. In a personal appearance hearing conducted at Arlington, VA on 27 January 2020, 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 (Civil Conviction) / AR 635-200 / Chapter 14-5, Section II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 12 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 September 2011 (2) Basis for Separation: The applicant was convicted of kidnapping in the State of Tennessee (19 September 2011). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 9 September 2011 (5) Administrative Separation Board: Waived, 9 September 2011 (Based on evidence submitted by the applicant) An Administrative Separation Board convened on 5 August 2011, the applicant appeared with counsel. The Board determined that a preponderance of the evidence did not support the allegation that the respondent, on or about 13 December 2011, was arrested for kidnapping and aggravated assault. Based upon the finding, the Board recommended that the respondent be retained in the service. (6) Separation Decision Date / Characterization: 16 November 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 October 2009 / 5 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91B10, Wheeled Vehicle Mechanic / 3 years, 11 months, 1 day d. Prior Service / Characterizations: 24 September 2007 to 18 October 2009 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (30 December 2008 to 3 November 2009) f. Awards and Decorations: ARCOM, AAM, NDSM, GWOTSM, ICM-2CS, NCOPDR, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Personnel Action forms, dated between 14 December 2010 and 25 August 2011, reflect the applicant's duty status changed as follows: From "PDY" to "Confinement Civilian Authorities (CCA)," effective 14 December 2010; From "CCA" to "PDY," effective 19 January 2011; and, From "PDY" to "CCA," effective 25 August 2011. i. Lost Time / Mode of Return: 200 days (Civilian Confinement, 25 August 2011 to 12 March 2012) / released on parole, based on applicant's self-authored statement. j. Diagnosed PTSD / TBI / Behavioral Health: Chronological record of Medical Care, dated 3 March 2011, shows the applicant had chronic problems with adjustment disorder with disturbance of emotions and conduct. Report of Behavioral Health Evaluation, dated 23 March 2011, reflects the applicant was diagnosed with (Axis I) partner relational problems. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 293; self-authored statement; five third party statements; thirteen copies of his certificates of training and awards. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, II, misconduct (civil conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" will be assigned an RE Code of 4. 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 under other than honorable conditions discharge to honorable or general (under honorable conditions). The applicant's available 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. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry 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 a single incident provides the basis for a characterization. The applicant contends he received no support from his chain of command and the incident, which led to his discharge was never investigated by the military. However, 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 applicant requests a change to the characterization of his service in order to rejoin the Army. However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 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 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. 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 that 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): Medical Documents - 48 Pages Character Statements - 3 Pages b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions the applicant and counsel provided in written submissions and in support of previously submitted documentary evidence. c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 27 January 2020, 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 AR20180000141 5