1. Applicant's Name: a. Application Date: 29 June 2015 b. Date Received: 1 July 2015 c. Previous Records Review: AR20150011275, 5 October 2016 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant seeks relief based on propriety and equity standards, contending in pertinent part and in effect, first issue, the applicant was entitled to have the case heard by a Board of Officer (BOI) according to AR 600*8-24, paragraphs 4-20 and 4-21, and Table 4-2, Step 9d, despite being a probationary officer with less than five years of Active Federal Commissioned Service (AFCS) as of 8 July 2013, the date of the DASA's decision. When the Army substantially violated its own regulation, the applicant was denied fundamental, and procedural and regulatory due process. The counsel asserts that the subsequent material harm the applicant suffered, has tainted and nullified the Acting DASA's separation decision. Second issue, AR 600-8-24, paragraph 4-3b, stipulates a requirement to include a psychiatric study of the applicant, when it is determined that a mental condition may have contributed to military inefficiency or unsuitability, and that the psychiatric report will also indicate, "'whether the incapacitating mental illness could have been the cause of the conduct under investigation.'" The command failed to refer the case for a physical/psychiatric report; nor was the key question asked and/or answered by any qualified mental health professionals treating, evaluating examining, or diagnosing the applicant during the 17 months after initiation of the Show Cause proceeding in February 2012, and before separation in July 2013. Accordingly, the Army denied the applicant fundamental regulatory due process and prejudiced substantial rights. Moreover, the mitigating and extenuating evidence of such command-directed separation physical and psychiatric report would have likely produced, both the Army Review Board Agency's Ad Hoc Review Board, and the DASA, relevant information with which to make a fully informed separation decision. Third issue, the applicant served more than 18 years. The applicant served honorably as a combat medic in Iraq. The applicant had been hospitalized as a psychiatric inpatient for suffering from chronic PTSD as a direct result of combat service and received a PEB unfit determination. The applicant received a 70 percent disability rating and TDRL (Temporary Disability Retired List) recommendation. The applicant's separation appears harsh and inequitable, given that the applicant is separate with anything but an honorable discharge and pursuant to the MEB/PEB/IDES medical recommendations. Conclusively, the applicant has suffered material prejudice and harm resulting from the current discharge. The applicant suffered financial loss by not being placed on TDRL, loss of the difference between medical insurance premiums, loss in medications and co-pay costs; loss in moving expense, loss of federal employment opportunities, and loss of Post 9/11 GI Bill. 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 received the following diagnoses: Dysthymia, Depression, Adjustment Disorder with Anxiety, Partner Relational Problem, Phase of Life Circumstances, and Post-Traumatic Stress Disorder (PTSD). The applicant is 50% service-connected for PTSD from the VA. In summary, although the applicant had a BH diagnosis, PTSD, it is not mitigating for the misconduct which led to separation from the Army. In a personal appearance conducted at Arlington, VA on 14 January 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, Paragraph 4-2b / JNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 24 July 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 February 2012 (2) Basis for Separation: The applicant was informed of the following reasons: A series of substantiated derogatory activity resulting in a GOMOR, dated 22 July 2010, and two referred OERs for periods: 18 April 2010 thru 14 September 2010, and 15 September 2010 thru 10 June 2011, which were filed in his OMPF. Conduct unbecoming an officer as indicated by the referenced GOMOR. (3) Recommended Characterization: General (Under Honorable Conditions), and the Battalion Commander recommended retention The applicant was advised that according to AR 600-8-24, paragraph 4-24, he may submit a rebuttal with supporting documentation to show how he has either successfully overcame the reason for the Show Cause Proceedings or a statement explaining his past actions/behavior; that according to AR 600-8-24, chapter 4, he may submit a request for resignation in lieu of elimination and that the effective date would be determined according to AR 600-8-24, paragraph 4-5; and that if a discharge Under Other Than Honorable Conditions was recommended, he may request appearance before a BOI, and that a recommendation for honorable or general (under honorable conditions) discharge would be forwarded directly to HRC for DASA decision, without referral to a BOI. (4) Legal Consultation Date: 20 March 2012, the applicant submitted rebuttal matters requesting retention. (5) GCMCA and Show Cause Authority Recommendation: On 2 May 2013, the GCMCA recommended a General (Under Honorable Conditions) discharge. On 14 June 2013, the Commanding General of HRC, recommended a General (Under Honorable Conditions) discharge. (6) DA Ad Hoc Review Board Recommendation: 2 July 2013, General (Under Honorable Conditions) (7) DASA Separation Decision Date / Characterization: 8 July 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Appointment: 10 July 2009 / Voluntary Indefinite Status b. Age at Appointment / Education / GT Score: 32 / Bachelor of Science Degree / NA c. Highest Grade Achieved / MOS / Total Service: O2 / 66H, Medical-Surgical Nurse / 18 years, 2 months, 27 days d. Prior Service / Characterizations: USAR (28 April 1995 to 7 August 1995) / NA IADT (8 August 1995 to 7 February 1995) / HD USAR (8 February 1995 to 7 November 2001) / HD RA (8 November 2001 to 13 June 2007) / HD RA (14 June 2007 to 9 June 2009) / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (12 May 2004 to 7 February 2005) f. Awards and Decorations: ARCOM-4; AAM-2; ARCAM; AGCM-2; NDSM-2BSS; ICM- 2CS; GWOTSM; NCOPDR; ASR; OSR-2; MOVSM; MUC; ASUA g. Performance Ratings: Five OERs at the grade of 1LT / O-2: 15 September 2010 thru 10 June 2011, Outstanding Performance, Must Promote 11 June 2011 thru 22 February 2012, Outstanding Performance, Must Promote 23 February 2012 thru 22 December 2012, Satisfactory Performance, Promote 23 December 2012 thru 24 July 2013, Satisfactory Performance, Promote h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 22 July 2010, indicates the applicant was reprimanded for making disparaging comments about and communicating a threat about his supervisor, MAJ J., to a fellow officer on 9 May 2010. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Medical Statement, dated 20 March 2012, rendered by Dr. D.A., MD, indicates the applicant was being treated for medical conditions that included PTSD. An Informal Physical Evaluation Board (PEB) Proceedings, dated 4 April 2013, indicates the applicant was found physical unfit with a recommended rating of 70 percent and placing on Temporary Disability Retired List (TDRL), for medical conditions that included PTSD, major depressive disorder, and panic disorder without agoraphobia with a rating of 50 percent. The applicant's documentary evidence consisting of a medical evaluation, dated 14 August 2012, rendered by a behavioral health provider, reported specific history of medical conditions and treatment for chronic PTSD, depression, adjustment disorder, and anxiety. The detailed report included a "Mental Status Examination" that indicates the "Axis I" diagnosis met the diagnostic criteria of PTSD, and remarks that "the effects of PTSD symptoms on [his] employment and overall quality of life include heightened arousal, hypervigilance, and readiness to combat others despite no longer being in a combat situation [that] interferes significantly with maintaining viable working relationships with others." Behavioral Health Narrative Summary for Medical Board rendered by an IDES Psychiatrist provides extensive behavioral health issues and treatment. Health Records, dated in August, September, and October 2005, January and July 2006, May 2007, July 2009, and March, May, June, September, October, November, and December 2010, and April and May 2012, document behavioral health issues and treatment. Medical statement (Untreated PTSD and Related Event), dated 10 March 2015, rendered by a clinical psychologist of the community behavioral health service at Fort Sill, OK, provided her professional opinion of the applicant's behavioral health condition and the event that led to his discharge. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge, dated 16 July 2018, with attorney-authored brief and its list of enclosures. Additional Evidence: Attorney cover letter, dated 7 January 2019, subject: "Executive Summary," with Jack D. Norrell, LCSW, PC letter, dated 8 November 2017, and Under Secretary Kurta memorandum, dated 25 August 2017, with Clarifying Guidance as attachment. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 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 (under honorable conditions), 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 "JNC" as the appropriate code to assign enlisted Officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 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 general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The applicant's contentions were carefully reviewed. However, the record confirms that his discharge, based on an unacceptable conduct, 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's numerous contentions, including not being afforded certain fundamental due process of his show-cause proceedings; thereby, resulting in his discharge being unjust was 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 may have been unjustly discharged. The applicant's statements 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 which involved his diagnoses with PTSD and its associated behavioral health medical conditions, 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. The separation authority also considered the medical evidence, and determined that was not the case. The Board is not bound by the separation authority's finding in that regard, and can review that determination. 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. The applicant contends he suffered material prejudice and harm resulting from his current discharge, and that he suffered financial loss by not being placed on TDRL, the difference between medical insurance premiums, medications and co-pay costs, and moving expense, and federal employment opportunities and the Post 9/11 GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, 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 not being medically discharged or place on TDRL, Army Regulation does stipulate that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under AR 600-8-24, Chapter 4 and paragraph 4-2b is "Unacceptable Conduct," and the separation code is JNC. 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): Medical Retirement Orders (2 pages) b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance conducted at Arlington, VA on 14 January 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 AR20180009500 6