1. Applicant's Name: a. Application Date: 5 August 2018 b. Date Received: 6 August 2018 b. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through legal counsel, requests an upgrade of general (under honorable conditions) discharge to honorable and a change of the narrative reason for separation to expiration of term of service. The applicant seeks relief contending, in effect, was discharged on ETS and believes the discharge should be upgraded based on equitable consideration. Namely, that the number of combat missions in the Infantry of over 200, plus having been wounded-in-action in Wardak Provence, Afghanistan during heavy fighting against the Taliban (Purple Heart) together with supporting letter from brothers-in- arms who served with the applicant demonstrates that the applicant's overall service was honorable. The applicant also contends that since discharge, the VA has diagnosed the applicant with TBI and is currently taking medication for migraines since 2011. The applicant contends that along with TBI, the applicant has been diagnosed with PTSD. The applicant has reoccurring nightmares and on occasion a certain smell or sound will trigger what some call a flash back. For the last seven years, the applicant has been receiving mental health treatment from the John J. Pershing VA clinic. 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 Post-concussion Syndrome. The applicant is 80% service-connected; 70% for PTSD from the VA. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 5 August 2019, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, being combat wounded, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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 / General (Under Honorable Conditions) b. Date of Discharge: 25 October 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 August 2009 (2) Basis for Separation: The applicant was informed of the following reason: for dereliction in the performance of his duties, making a false official statement, and assaulting a detainee. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 August 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 October 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 July 2006 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (16 March 2008 to 30 March 2009) f. Awards and Decorations: PH, AAM, NDSM, GWOTSM, ACM-CS, ASR, OSR, NATOMDL, CIB, AAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Offer to Plead Guilty to charges pending against him. Summary Court-Martial, dated 17 November 2008, for being derelict in the performance of his duties, in that he willfully failed to report detainee abuse, as it was his duty to do between 23 August 2008 and 6 September 2008; with intent to deceive made to CPT S., an official statement, to wit: "I have not seen or heard of any detainee being mistreated," or words to that effect, which statement was totally false, and was then known by him to be false; and assaulted a detainee by unlawfully striking a detainee with a close hand in the face between 23 August 2008 and 27 August 2008. The punishment consisted of reduction to E-3, forfeiture of $898 pay per month for one month, and restriction for two months. Report of Mental Status Evaluation, dated 7 May 2009, shows the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels (i.e., MEB/PEB). The applicant was psychiatrically cleared for any administrative action and or training deemed appropriate by his command. Report of Mental Status Evaluation, dated 18 May 2009, which indicates the applicant had the mental capacity to understand and participated in the proceedings and was mentally responsible. The applicant was screened for PTSD and mTBI IAW OTSG/MEDCOM Policy Memo 08-018, results negative. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letters supporting his service in combat during over 200 Infantry missions outside the wire of Wardak Provence, Afghanistan which he believes describes bravery in combat, to include his having been wounded, as such that his service ought to rightly be characterized as honorable; numerous awards and decorations, photos of him and his family, and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since leaving the Army, he has served his community as a deputy sheriff for two years before becoming a father and leaving law enforcement for a better paying career field in manufacturing. Where he is currently employed and hopes to put 30 years in there. It is hard and tough working in a steel mill but he enjoys it, and it's a great company that takes care of them. He is a member of a community organization called Rotaract Club which is the precursor to the Rotary Club. He coaches a youth rugby team and is involved in a community adolescent mentorship program (CAMP) foundation, where they adopt local children from low income families (usually with no father figure at home) and mentor those boys in growing up. 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 through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the narrative reason for separation to expiration of term of service. 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. 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 evidence of record shows the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." 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 appropriate RE code is 3. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that he was discharge on his ETS and believes his discharge should be upgraded based on equitable consideration, namely, that the number of combat missions in the Infantry of over 200, plus having been wounded-in-action in Wardak Provence, Afghanistan during heavy fighting against the Taliban (Purple Heart) together with a supporting letter from his brothers-in-arms who served with him demonstrates that his overall service was honorable. 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 and the applicant is to be commended on his accomplishments. However, 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. It should be noted; by regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of misconduct (serious offense). It appears the applicant's generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. Although the applicant claims he was discharged on his ETS dated; evidence of record shows the applicant enlisted on 6 July 2006 for a period of 3 years and 16 weeks, therefore giving the applicant an ETS date of 5 November 2009. There is no evidence that the applicant was held past his ETS date. The applicant also contends that since his discharge the VA has diagnosed him with TBI and he is currently taking medication for migraines since 2011. He contends that along with TBI he has been diagnosed with PTSD. He has reoccurring nightmares and on occasion a certain smell or sound will trigger what some call a flash back. For the last seven years he has been receiving mental health treatment form the John J. Pershing VA clinic in his home town. These contentions were noted; however, evidence in the record shows a Mental Status Evaluations was conducted on 7 May 2009 and 18 May 2009. and no evidence of Post- Traumatic Stress Disorder or TBI was diagnosis and the applicant has not submitted any evidence to corroborate the discharge was the result of any medical condition or that he is currently receiving medical treatment from the Department of Veterans Affairs. 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 5 August 2019, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, being combat wounded, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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 AR20180010305 1