1. Applicant's Name: a. Application Date: 11 March 2018 b. Date Received: 2 April 2018 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 to include the reentry eligibility (RE) code. The applicant through counsel seeks relief contending, in effect, the underlying basis of his separations was procedurally defective at the time of the discharge. The adverse action, to include the administrative discharge were unfair at the time. His under other than honorable conditions discharge is now inequitable. His separation was inequitable and has served its purpose. He was not present at the administrative separation board and not being so he was denied due process. He received counseling by the Veterans Affairs (VA) for depression, PTSD and TBI. 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 TBI. However, due to the nature of the misconduct, neither PTSD nor TBI mitigate the offense of domestic violence. In a Travel panel hearing conducted at Sacramento, CA on 19 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 18 March 2011 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 16 July 2010 (2) Basis for Separation: The applicant was informed of the following reasons: for his discharge; domestic violence incident that occurred on 10 June 2010, in his condominium in Fayetteville, NC. As a result of this incident, both your wife and your child suffered significant injuries. As a result of this incident, he was arrested by the Fayetteville Police Department, and received charges including, but not limited to: (a) Assault Resulting in Serious Bodily Injury, NCGS 14-32.4, (b) Assault by Strangulation, NCGS 14-32.4(B), (c) First Degree Kidnapping, NCGS 14-39, and (d) Child Abuse Resulting in Serious Bodily Injury (d) 14-318.4. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 October 2010 (5) Administrative Separation Board: The applicant voluntarily waive consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service or description of separation no less favorable then honorable. On 17 December 2010, the separation authority disapproved the applicant's waiver request and directed that an administrative separation board be convened. On 17 January 2011, the applicant was notified to appear before an administrative separation board and advised of his rights. On 31 January 2011, the administrative separation board convened. The applicant did not appeared before the board due to civilian confinement and his legal counsel represented him at the board. The board recommended the applicant be discharged from the US Army with issuance of a characterization of service of under other than honorable conditions. The separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of under other than honorable conditions. The applicant was to be reduced to the lowest enlisted grade. (6) Separation Decision Date / Characterization: 2 March 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 November 2007 / Indef b. Age at Enlistment / Education / GT Score: 33 years / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-7 / 18E1P, Special Forces Communications Sergeant / 25Q1P, Multichannel Transmission Systems Operator / Maintainer / 17 years, 18 days d. Prior Service / Characterizations: USAR, 20 September 1991 to 3 June 1992 / NA USMC, 1 June 1996 to 31 May 1996 / HD USMCR, 1 June 1996 to 25 January 1998 / NA RA, 26 October 1998 to 19 June 2001 / HD RA, 20 June 2001 to 12 November 2007 / HD e. Overseas Service / Combat Service: Germany / SWA / Saudi Arabia, 28 December 1998 to 15 May 2000 / Iraq, 5 September 2003 to 5 April 2004 / Afghanistan, 15 January 2009 to 15 July 2009 f. Awards and Decorations: BS, ARCOM-4, AAM-4, AGCM-4, NDSM-BS, AFEM, ACM- CS, ICM-CS, GWOTEM, GWOTSM, NOPDR-2, ASR, OSR, NATO MDL, CIB, MCGCM g. Performance Ratings: 1 August 2006 to 28 February 2010, Among The Best h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 11 June 2010, revealed the applicant was under investigation for kidnapping, assault inflicting seriously bodily injury, off post. The applicant received a negative counseling statement regarding domestic abuse. i. Lost Time / Mode of Return: Confinement Civilian Authorities for 266 days, 11 June 2010 until 7 March 2011. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 23 November 2010, relates the applicant had an Axis I diagnosis of partner relational problem and Axis III, sleep apnea. He psychiatrically cleared for any administrative action deemed appropriate by the Commander to include Chapter separation or UCMJ. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 2193 (two pages); DD Form 214 (two pages); attorney's brief (six pages); DD Form 214, USMC; AGCM Orders 091-125; family advocacy case review commander's report (three pages); DA Form 4187 (Personnel Action); medical examination and mental evaluation (eight pages); Report of Mental Status Evaluation (two pages); Military Police Report (15 pages); military protective order (two pages); domestic abuse / emergency protection order checklist (five pages); military records, police records, personal affidavit, character statements, awards and numerous other documents from the applicant's OMPF. 6. POST SERVICE ACCOMPLISHMENTS: Applicant's attorney provides since his discharge, he attended a local community college for three (3) years. He made the decision to become a lawyer. He transferred to the University of the Pacific as junior and majored in English and Sociology with a minor in pre-law and ethnic studies. While attending University of the Pacific, he became involved in the Student Veterans Organization (SVO) that resulted in him becoming the president of the SVO. As the president of the SVO, he coordinated with the Veteran Health Care Outreach Nurse to visit the University, to assist veterans at the school get their medical needs met without missing time from school. In addition, he worked at the campus Veteran Resource Center to further assist the veterans to help make their transition to civilian / student life easier. He worked with the local catholic charities to help locate homeless veterans. He spoke with homeless veterans to help them get into the veterans' health care system and possibly get them housing. During his senior year at the university, he coordinated with other student organizations on campus to help feed the homeless in his town. In his final semester at the university, he was awarded the Faith-Davies all University Leadership Award. Specifically, the Jesse Marks Co-Curricular Award, which is awarded to one graduating senior who made significant contributions to the university. The applicant received his Bachelor of Arts degree on 16 June 2017 from the University of the Pacific. 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, 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 the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation to include the RE code. The applicant's 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 misconduct (serious offense), 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 to include the RE code. 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 regulation further stipulates that no deviation is authorized. 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. The applicant seeks relief contending, the underlying basis of his separations was procedurally defective at the time of the discharge; and the adverse action, to include the administrative discharge were unfair at the time. 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. 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 further contends, his under other than honorable conditions discharge is now inequitable. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. The applicant also contends, his separation was inequitable and has served its purpose. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The character of the applicant's discharge was commensurate with his overall service record. The applicant also contends, he was not present at the administrative separation board and not being so he was denied due process. The administrative separation board convened, the applicant did not appear before the board due to civilian confinement. However, his legal counsel represented him at the board. A memorandum dated, 1 March 2011, relates that a review of the administrative separation board determined the investigation was legally sufficient and there were no errors. The board was properly composed and conducted. The board's findings and recommendations were supported by the facts set forth in the discharge packet. The applicant additionally contends, he received counseling by the VA for depression, PTSD and TBI. The service record contains no evidence of counseling by the VA for depression, PTSD and TBI. The applicant did not submit any evidence to support this contention that the discharge was the result of any medical condition. The applicant's post-service accomplishments have been noted as outlined on the attorney's brief with the application. The third party statements provided with the application speak highly of the applicant. However, some of 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 requests: None. c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a Travel panel hearing conducted at Sacramento, CA on 19 September 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 AR20180008771 7