1. Applicant's Name: a. Application Date: 1 March 2018 b. Date Received: 20 March 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge honorable and to change the narrative reason and its corresponding codes for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, an upgrade would allow for the applicant's medical retirement. As to changing the reenlistment code to RE-1, the counsel contends that it is very unlikely that the applicant would be physically able to meet future military missions. The counsel argued that the recorder for the administrative separation board, prior to the board, had amended the false alleged claim that the applicant had assaulted his girlfriend on 11 May 2016, when the applicant provided that he, the respondent in the case, was actually the assault victim and his wife was unequivocally the aggressor, which the recorder dismissed; thereby, violating Chapter 2, AR 635-200, by failing to seek out the chain of commander's recommendations, so to effectively assess whether the noted changes warranted a change to the recommendations. The changed findings and recommendations worksheet could have unquestionably altered the chain of command's endorsements. Thus the recorder's defiant refusal meant the separation proceedings were not appropriately processed through the chain of command to the separation authority, an effect on the recommendations for separation or retention and characterization of service. Specifically, paragraph 2-2 states, "in making recommendations on the type of discharge and characterization of service," the chain of command "may recommend any type ... authorized for the notified basis of separation but will normally be limited to considering facts contained within the proposed action." The commanders considered the highly misleading domestic violence assault related information. The misinformation was unjust while the dilemma could have been resolved had the recorder abided by AR 635-200 and simply ascertained the mandated chain of command opinions, which the recorder unquestionably did not do so. Moreover, the recorder used it to convince the board that such harsh discharge was appropriate. Additionally, the government inexplicably shared the highly 11 May 2016, assault information with the board president prior to the board convening. This egregious dissemination violated the applicant's legal right to object to the introduction of real and documentary evidence, and poisoned the board president with unfairly prejudicial evidence before the applicant, the respondent, could object, a due process. (The counsel cited several case laws.) The counsel, on behalf of the applicant, also presented additional issues with the claim the applicant indecently communicated with a minor, and that the claim was absurd for three cited fundamental reasons; in that, the basis for the applicant's separation was due to a serious offense; however, there was no conviction, and the allegation based on civilian law was dismissed by a judge, a dismissal due to the judge's findings that the applicant did not commit the offense. (The counsel cited paragraph 1-17b, "Separation per this regulation normally should not be based on conduct that has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.") The counsel requested an expeditious processing of the applicant's case due to his significant health-related issues that were not addressed because of his current discharge, which prohibits him from any VA benefits. He was denied a medical retirement as the unjust adverse action was wrongfully favored by the separation authority, the GCMCA. The applicant had extended his initial ETS date from 30 September 2017 to 30 March 2018, to fight for his medical retirement. The applicant was also denied being transferred to the Warrior Transition Unit. The totality of the circumstances surrounding the applicant's discharge with supporting evidence justify an affirmative relief. 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 Adjustment Disorder with depressed mood; Adjustment Disorder with disturbance of emotions; Adjustment Disorder with mixed anxiety and depressed mood; Other Specified Family Circumstances; mild TBI; Sleep Disorder, unspecified. The applicant is 20% service-connected from the VA. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 16 September 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry code of 4. In view of the error, the Board directed an administrative correction to block 27 to read 3, as approved by the separation authority and as required by Army Regulations. (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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 26 January 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 April 2017 (2) Basis for Separation: The applicant was informed of the following reasons: Between 1 December 2014 and 11 May 2016, the applicant was indecently communicating with a minor. Additionally, the applicant assaulted his girlfriend on 11 May 2016. Furthermore, the applicant failed to report to his appointed place of duty at the prescribed time on 22 December 2016, 1 March 2017, 6 March 2017, and 7 March 2017. The applicant, also, disrespected a noncommissioned officer on 2 October 2015. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 3 May 2017 (5) Administrative Separation Board: 17 October 2017, the Board reported the following findings and recommended an Under Other Than Honorable Conditions discharge: The allegation that the applicant indecently communicated with a minor was supported by a preponderance of evidence, and warranted his separation. The allegation that the applicant disrespected a noncommissioned officer was supported by a preponderance of evidence, and did not warrant his separation. The allegation that the applicant failed to go to his appointed place of duty was supported by a preponderance of evidence, and did not warrant his separation. (6) Separation Decision Date / Characterization: 16 January 2018 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 October 2013 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 106 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91B10, Wheeled Vehicle Mechanic / 4 years, 5 months, 17 days d. Prior Service / Characterizations: DEP (5 August 2013 to 6 October 2013) / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Counseling statement for not being at his appointed place of duty at the prescribed time, the Transition Assistance Program; failing to be at his appointed place of duty at the prescribed time on numerous occasions; being disrespectful towards an NCO; and failing an APFT. Informal Physical Evaluation Board (PEB) Proceedings, dated 19 May 2016, indicates the Board found the applicant unfit and recommended a rating of 20 percent and that he be separated with a severance pay. That applicant did not concur and demanded a formal hearing. Superior Court Order of Dismissal with its Findings of Fact and Conclusion of Law, dated 21 September 2016, indicates the "information" in the case was determined that insufficient evidence existed to support the charge of communication with a minor for immoral purposes, and therefore ordered dismissed, and the applicant, as defendant, was released from all conditions of release and any bail bond exonerated. CG Article 15, dated 26 October 2016, for failing to go to his appointed place of duty at the prescribed on several occasions, on 12 August 2016, 23 September 2016, and 27 September 2016. The punishment consisted of a reduction to E-3, 14 days of extra duty, and 14 days of restriction (suspended). Memorandum, dated 27 August 2017, Subject: Request for Medical Retention, Re: [the applicant], indicates request to extend the applicant's ETS date for medical retention, was approved for an ETS extension from 30 September 2017, to 28 January 2018, for the purpose of completing his medical board. Report of Proceedings by Board of Officers with the board's findings and recommendations, and summarized transcript of the proceedings indicated the board had convened/adjourned on 17 October 2017. Memorandum for Record, dated 8 December 2017, Subject: Legal Review - Administrative Separation Board for [the applicant], rendered by an Administrative Law Attorney, found the separation board proceedings legally sufficient, presented the board's findings and recommendations, provided a summarized analysis of the separation board proceedings, and advice on the actions the separation authority may make. i. Lost Time / Mode of Return: 5 days (Civilian Confinement on 8 June 2016 to 12 June 2016) / The applicant was released from confinement. j. Diagnosed PTSD / TBI / Behavioral Health: Health Records, dated 25 February 2016 and 5 January 2016, indicate the applicant's diagnosis of an "Adjustment disorder with anxiety" with issues of "Anger, Anxiety, depression," and "Adjustment disorder, unspecified," respectively. Report of Mental Status Evaluation, dated 8 March 2017, reports an "AXIS I" diagnosis of an "Adjustment Disorder with Depressed Mood and Anxiety," and the applicant being cleared from a behavioral health perspective for administrative separation IAW AR 635-200. Report of Medical History, dated 22 March 2017, indicates the applicant noted behavioral health issues, and the examiner noted that the applicant made numerous behavioral health visits since June 2016. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 1 March 2018, with attorney-authored brief and listed attachments, labeled as Exhibits from Exhibit A through Exhibit L. 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 under other than honorable conditions discharge honorable and to change the narrative reason and its corresponding codes 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 serious incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. The service record also reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. The applicant provided no independent corroborating evidence, with his current application, 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 an upgrade would allow for the applicant's medical retirement. However, the applicant's request to allow for a medical retirement does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The counsel on behalf of the applicant contends the discharge was unjust based on the numerous reasons presented by the counsel. The contentions or bases for an unjust discharge 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 was unjustly discharged. The applicant's statements through his counsel 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 counsel requested an expeditious processing of the applicant's case due to the applicant's significant health-related issues that were not addressed, which prohibits him from any VA benefits. However, eligibility for veterans' 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. Insofar as the applicant's health-related issues, a careful review of the applicant's 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 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. 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 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): b. The applicant presented the following additional contention(s): c. Counsel / Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 16 September 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27 contains the erroneous reentry code of 4. In view of the error, the Board directed an administrative correction to block 27 to read 3, as approved by the separation authority and as required by Army Regulations. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: Yes 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 / RE-3 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 AR20180005577 7