1. Applicant's Name: a. Application Date: 25 March 2018 b. Date Received: 5 April 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests a narrative reason change and a reentry (RE) code change. The applicant seeks relief contending, in effect, the narrative reason for separation is inequitable because the allegation that the applicant "assault[ed] a junior enlisted Soldier" is not supported by the weight of the evidence; and the applicant's conduct reflects a single instance of poor judgment, which took place almost four years ago. Counsel states, the incident was a single, isolated instance of poor judgment and the applicant had no misconduct prior to this incident and, aside from this isolated incident, conducted oneself admirably while in service to the country. Since discharge, the applicant has conducted oneself as a valuable and upstanding member of the community. The applicant has maintained gainful employment and has also contributed time to volunteerism and charity. Counsel, further details contentions in the allied legal brief. 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. The applicant does not have any VA records available for review. In summary, the applicant does not have BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a personal appearance hearing conducted at Arlington, VA on 9 December 2019, 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2B and 4-24A (1) / BNC / NA / Honorable b. Date of Discharge: 15 July 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 December 2014 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2b for misconduct: He wrongfully assaulted a Junior Enlisted Soldier by repeatedly striking the Soldier in the ribs without gloves or protective gear during combative training. He engaged in conduct unbecoming of an Officer as outlined in the previously mentioned act of misconduct and a General Officer Memorandum of Reprimand he received on 4 September 2014. (3) Resignation in Lieu of Elimination: On 12 January 2015, the applicant voluntarily tendered his resignation in lieu of further elimination proceedings on the condition that he receive a characterization of service of no less than General (Under Honorable Conditions). The applicant requested that he receive an honorable characterization. (4) Legal Consultation Date: NIF (5) GCMCA Recommendation Date / Characterization: On 29 January 2015, the GCMCA recommended approval of the applicant's request for resignation in lieu of elimination. / Honorable (6) DA Ad Hoc Review Board: 30 June 2015 4. SERVICE DETAILS: a. Date / Period of Appointment: 4 May 2013 / indefinite b. Age at Appointment / Education / GT Score: 22 / Bachelor's Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-1 / 11A 5P Infantry / 2 years, 1 month, 16 days d. Prior Service / Characterizations: CDT 23 August 2010 - 29 May 2013 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum Of Reprimand, dated 4 September 2014, for assaulting a junior enlisted Soldier. He compelled a Soldier to participate in "combative training" in retaliation for allegedly being under the influence of synthetic marijuana. During the "combative training," the applicant repeatedly struck the Soldier in the ribs without the benefit of gloves or any other protective gear. The applicant later attempted to cover his actions by referring to the session as a "developmental session." His conduct was unacceptable and would not be tolerated. Informal AR 15-6 Investigation Findings and Recommendations, dated 12 August 2014, reflects the investigation officer found: The applicant initiated a combative training session, and PVT T agreed to a combatives training session. The applicant knew that PVT T was interested in combatives and had been actively involved in combatives before getting into legal trouble. The applicant intended to use the combatives session as a means to relate to PVT T and help him. He saw it as an unconventional way to deal with a Paratrooper who was having trouble in his life. The applicant did not hold a combatives certification from the U.S. Army. The applicant changed the focus of the training session from skills training to sparring, and struck PVT T repeatedly in the torso while, using no protective gear. The applicant punched PVT T in the body repeatedly for approximately 15 to 30 minutes. PVT T initially agreed to a combatives session with the applicant, but did not want to continue the session when the applicant began punching him in the body. PVT T sustained bruises and scratches to his chest, side and back as a result of the combatives session. SGT K thought the applicant was going to engage in corrective training using combatives, but did not advise the applicant against it, report the event to anyone, or log the event in the Staff Duty event log. SGT K told the investigating officer and wrote in an official statement that he informed SFC U of the applicant's actions, but SFC U, SPC M and PV2, did not recall anything being said about the applicant punching PVT T, and the staff duty logs from 2-504 PIR and 1 BCT do not show any entries related to that event. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 January 2014, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Occupational Problem. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief with all listed enclosure; third party statement; email conversation (39 pages). 6. POST SERVICE ACCOMPLISHMENTS: Counsel states the applicant has conducted himself as a valuable and upstanding member of his community. He has maintained gainful employment and has also contributed his time to volunteerism and charity. 7. REGULATORY CITATION(S): Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service 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 "BNC" as the appropriate code to assign commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct and who have submitted a request for resignation in lieu of elimination under Chapter 4-24a(1). 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, through counsel, requests a narrative reason change and a RE code change. The applicant's 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained. Further, the applicant's record contains no evidence of arbitrary or capricious actions by the command. The applicant contends the narrative reason for the discharge should be changed because the weight of the evidence, does not support that he assualted a junior Soldier. However, the applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "JNC." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Further, 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 an RE code change. However, Officers being processed for separation are not assigned RE codes. Insomuch as the applicant's DD Form 214, does not reflect a RE code, if reentry in the Army is desired, the applicant should contact a local recruiter to determine his eligibility. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers, if appropriate. 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 that he had good service. 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 Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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 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 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): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 9 December 2019, 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 AR20180006399 6