1. Applicant's Name: a. Application Date: 4 June 2018 b. Date Received: 11 June 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to general (under honorable conditions) or honorable, and to change the narrative reason for discharge and its corresponding codes. The counsel, on behalf of the applicant, seeks relief contending, in pertinent part and in effect, the separation authority failed to consider or comment on the impact the applicant's PTSD, depression, anxiety disorder, and other mental health issues, had on the misconduct. The applicant's "command failed to comply with federal law and the Army's ... administrative separation procedures prior to separating him." Specifically, the "separation authority violated [his] due process rights by not considering how his mental health issues may have contributed to the underlying misconduct," the bases for his separation. Documentary evidence will show that the applicant's mental health conditions existed prior to, and at the time of discharge; therefore, they should "be 'considered as excusing or mitigating the discharge,'" according to the "guidance of references," included with the applicant's request. (The applicant provided a detailed background of military service and behavioral health issues.) Federal law requires that prior to separating the applicant, a medical examination to "'assess whether the effects of [PTSD] or [TBI] constitute matters in extenuation" relating to the bases for his separation "or the overall characterization" of his service as being under other than honorable. The separation authority did not indicate reviewing a medical or mental health evaluation, or determined whether the applicant's behavioral health issues constituted matters in extenuation. The failure to comply with federal law and Army regulations violated the applicant's procedural due process rights. Upgrading the discharge should also effect the restoration of rank to Staff Sergeant/E-6, the rank the applicant held prior to the administrative reduction, and a change to the reenlistment code. When the applicant applied for veterans' benefits, VA deemed him ineligible for the benefits due to the current discharge. 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 the applicant was diagnosed with the following Behavioral Health (BH) conditions while on active duty: Adjustment Disorder, Anxiety Disorder NOS, Chronic PTSD, Major Depressive Disorder, Intermittent Explosive Disorder. It was noted that he met DSM V criteria for PTSD and Intermittent Explosive Disorder and that he had had 7 inpatient psychiatric hospitalizations. In summary, the applicant does not have a mitigating BH disorder for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 12 December 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 18 December 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 September 2015 (2) Basis for Separation: The applicant committed indecent acts with a child over the course of numerous years. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 22 September 2015 (5) Administrative Separation Board: 4 December 2015, the board recommended Under Other Than Honorable Conditions characterization of service discharge, and the findings were: the applicant did commit indecent acts with a child over the course of numerous years, and that he did sent lewd text messages and did digitally penetrate his stepdaughter's vagina for the past three years. (6) Separation Decision Date / Characterization: 15 December 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 November 2013 / Indefinite b. Age at Enlistment / Education / GT Score: 19 / HS Graduate /101 c. Highest Grade Achieved / MOS / Total Service: E-6 / 19D10, D3 Cavalry Scout / 17 years, 3 months, 11 days d. Prior Service / Characterizations: RA (8 September 1998 to18 September 2000) / HD RA (19 September 2000 to 18 September 2004) / HD USAR (19 September 2004 to 27 September 2004) / NA ARNG (28 September 2004 to 9 May 2006) / HD RA (10 May 2006 to 5 October 2008) / HD RA (6 October 2008 to 14 November 2013) / HD e. Overseas Service / Combat Service: Kuwait, Germany, SWA / Iraq (26 April 2003 to 4 April 2004), (8 October 2008 to 3 October 2009), (10 November 2010 to 23 October 2011) f. Awards and Decorations: ARCOM-4; AAM-8; AGCM-5; NDSM; ICM-CS-3 GWOTEM; GWOTSM; AFEM; NCOPDR-2; ASR; OSR-5 g. Performance Ratings: Two NCOERs rendered during period of service under current review: 1 March 2013 thru 28 February 2014, Among the Best 1 March 2014 thru 28 February 2015, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Report of Proceedings by Board of Officers indicates that the Administrative Separation Board Proceedings held on 4 December 2015, reported the findings and recommendations on a "worksheet." The Proceedings also indicates, the applicant was absent at the proceedings "due to civilian incarceration," and that he was presented by a judge advocate counsel. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: Seven Medical Records reflecting the following: "Chronic Post-Traumatic Stress Disorder" on 30 September 2014. "Adjustment Disorder with Disturbance of Emotions and Conduct" on 22 October 2012. "Depression with Anxiety" on 17 January 2012, "Post-Traumatic Stress Disorder" on 7 December 2011, "Suicidal Ideation" on 2 December 2011, and "Explosive Disorder Intermittent" on 15 November 2011. "Adjustment disorder" on 24 February 2010, and "Adjustment Disorder with Anxiety and Depressed Mood" on 26 January 2010. "Anxiety Disorder NOS" on 14 January 2010, "Delayed Post-Traumatic Stress Disorder" on 14 January 2010, "Psychiatric Diagnosis or Condition Deferred on AXIS I" on 20 November 2009, "Visit for: screening mental/developmental disorders" on 15 February 2008, and "Adjustment Disorder with Depressed Mood" on 13 August 2007. "Visit for: screening exam depression" on 22 August 2012. "Depression" on 29 November 2007. Eight pages of Medical Record reflecting/listing of "Diagnosis History." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge, dated 4 June 2018; attorney-authored brief; DD Form 214 (18 September 2004/HD); NGB Form 22 (9 May 2006/HD); DD Form 214 under current review; Medical Record, dated 30 September 2014; 15 pages of Medical Records; The State of Texas Motion to Dismiss court document, dated 22 September 2017; Attorney at Law letter, dated 6 October 2017; VA letter, dated 20 October 2017; separation authority decision memorandum, dated 15 December 2015; four ARCOM certificates; eight AAM certificates; two certificates of training/course; Honorable Discharge certificate; AGCM Orders-1; and AGCM Orders-3. 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 to general (under honorable conditions) or honorable, and to change the narrative reason for his discharge and its corresponding codes. 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. The applicant compromised the special trust and confidence placed in an NCO. 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 applicant contends the discharge was unjust because the separation authority failed to consider or comment on the impact his PTSD and behavioral health issues had on his misconduct, and his command failed to comply with federal law and the Army's administrative separation procedures prior to separating him. Specifically, his due process rights were violated by not considering how his mental health issues may have contributed to the underlying misconduct that led to his discharge. 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's brief 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's contentions regarding his behavioral health issues, including his PTSD diagnosis, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The applicant made an additional request for reinstatement or restoration of his rank to Staff Sergeant/E-6, the rank he held prior to the administrative reduction. However, this request does not fall within the purview of this Board (ADRB); therefore, that portion of his request would be referred to and addressed by the by the Army Board for Correction of Military Records (ABCMR). The applicant contends that an upgrade of his discharge would allow him to receive veterans' 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. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 12 December 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. 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 AR20180009457 1