1. Applicant's Name: a. Application Date: 18 August 2018 b. Date Received: 24 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in pertinent part and in effect, in January 2010, was diagnosed with TBI and PTSD, after returning from Iraq. The applicant was prescribed different medications. As the applicant sought treatment, it had a large impact on the memory, recall, and behavior, specifically with moods. At the time, the applicant did not realized the connection between the brain injury, the medications, and behavior. In May 2010, the applicant was hospitalized for these issues and instead of transferring to the WTU, was reassigned to Fort Bliss. The new unit treated the applicant as a problem Soldier due to medical issues and profiles. Although in September 2010, the applicant was recommended for MEB, the unit began processing a Chapter 5-17 discharge, which confused the applicant. The process of many appointments and being notified the day of, led the applicant to lying about two forgotten appointments. When the applicant's wife gave birth, the unit denied paternity leave, which caused a very erratic and angry behavior that led to the accusations of communicating threats. The applicant's separation was changed to a pattern of misconduct. The applicant was hospitalized again, followed by being processed for a GD discharge. The chain of command was subsequently reprimanded for forcing Soldiers out of the Army-many received unfavorable actions and/or dismissals. Disregarding the diagnoses and recommendations of from medical support teams demonstrated a pattern of hostility and mistreatment towards the applicant and family. The VA has since granted the applicant 90 percent disability for service-connected TBI and PTSD. 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 following medical and behavioral health diagnoses: mild TBI, Cognitive Disorder NOS, Adjustment Disorder with Anxiety, and Depressive Disorder NOS. Notes indicate the applicant was not diagnosed with PTSD. The VA has diagnosed the applicant with Depression, Bipolar Disorder recurrent, PTSD chronic, chronic post-traumatic headache, and personal history of TBI. The applicant is 90% service-connected from the VA; 70% for TBI). In summary, the applicant did not have a mitigating medical or behavioral health diagnoses for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 9 January 2019 and by a 3-2 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 15 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 December 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 6 December 2010, he communicated a threat towards CPT O. and 1SG T.H. On 29 November 2010, he made two false official statements, one to SFC B.R. and another to 1SG T.H. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 December 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 December 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2007 / 4 years, 18 weeks b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Cavalry Scout / 3 years, 9 months, 18 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Germany, SWA / Iraq (23 December 2008 to 7 November 2009) (As noted on his ERB, as none is noted on his DD Form 214) f. Awards and Decorations: AGCM; NDSM; ICM-CS; GWOTSM; ASR; OSR-2; JMUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 6 December 2010, for making false official statement on two separate occasions on 23 November 2010. The punishment consisted of a reduction to E-2, forfeiture of $378, and 14 days of extra duty and restriction. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile, dated 10 May 2010, indicates the applicant had a permanent profile for depression, TBI with exertional headache. Report of Medical History, dated 9 September 2010, indicates the applicant noted behavioral health issues and the examiner noted that the applicant was diagnosed with PTSD Report of Behavioral Health Evaluation, dated 15 November 2010, indicates an "AXIS I" diagnosis of "Adjustment Disorder with Anxiety and Depressed Mood Atypical Depressive Disorder. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 18 August 2018; affidavit of spouse; separation file; Pre-separation counseling checklist; enlistment documents; discharge orders; MEB Referral; Report of Medical History; Fit for Duty memorandum, dated 25 September 2009; Article 15, dated 6 December 2010; two counseling statements; two sworn statements; occupational therapist memorandum for record; four profiles; memorandum for record for medical appointments; memorandum (psychiatrist), dated 18 May 2010; health records (11 March, 1 and 14 April, and 19 October 2010); prescription list; health record, dated 20 April 2010; and medication list. 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 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 general (under honorable conditions) discharge to honorable. 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, as a Soldier, had the duty to support and abide by the Army's policies. 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 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's contentions regarding his behavioral health issues, including a diagnosis of PTSD, 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. The applicant contends he was recommended for MEB, instead his unit began processing him for a Chapter 5-17 discharge. However, Army Regulation 635-200, in pertinent part, stipulates 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 contends that disregarding the diagnoses and recommendations of his medical support team demonstrated a pattern of hostility and mistreatment towards him and his family. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Based on the available record, 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 9 January 2019 and by a 3-2 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 AR20180011812 1