1. Applicant's Name: a. Application Date: 10 September 2018 b. Date Received: 12 September 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to honorable and a change of narrative reason for discharge which is misleading. The applicant seeks relief contending, in effect, that the current characterization of service has resulted in an injustice. The applicant has experienced significant personal and family problems that have affected the applicant's ability to serve (the applicant's wife was sexually assaulted by a team leader, which resulted in the wife getting pregnant, and the applicant being angry and sad afterward). The applicant has experienced significant discrimination, racism, unfairness and at the same time that was struggling with an untreated PTSD condition, which changed the applicant's behavior and caused the applicant to not act normally. During the second deployment, the applicant was wounded in combat in Kabul by an IED instrument of war and as a result sustained (a concussion, nose fracture, eyes condition, broken ribs, finger, toes, neck and back, and knee conditions) significant to the point that today the applicant is unemployable, permanent and totally. The applicant received a general (under honorable conditions) discharge after two deployments and years of faithful service to the county with a previous honorable discharge for a single offense. The applicant believes the commanding officer described the behavior inaccurately. The applicant would have received a different discharge status and a purple heart if these errors had not been made. The discharge status should therefore be upgraded to honorable and the applicant should also be awarded a Purple Heart since the Purple Heart is awarded to members of the armed forces who are wounded by an instrument of war in combat. The applicant cannot see the outline of the future without this upgrade. 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 Adjustment Disorder with Anxiety, Alcohol Abuse, and Partner Relational Problem. Post-service, the applicant has a service connected disability rating of 80%; however, this is for medical and not behavioral health concerns. There is also a lack of evidence for a diagnosis of PTSD or TBI. In summary, the applicant did not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 13 February 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 January 2012 (2) Basis for Separation: The applicant was informed of the following reasons: being disrespectful to a noncommissioned officer x 2 (17 March 2011 and 16 July 2011); Showing a total lack of military standards and discipline (20 September 2011); and Being agitated and destroying property (8 October 2011) (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 February 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 February 2012 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 November 2010 / 6 years b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 years, 1 month, 10 days d. Prior Service / Characterizations: RA, 7 January 2009 to 17 November 2010 / HD e. Overseas Service / Combat Service: SWA, Germany / Iraq (16 June 2009 to 15 June 2010) f. Awards and Decorations: ARCOM, AAM-3, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 9 November 2011, for failure to go at the time prescribed to his appointed place of duty on 20 September 2011, being disrespectful to a noncommissioned officer on 20 September 2011, and being disrespect in language toward a senior noncommissioned officer 20 September 2011. The punishment consisted of reduction to E-3, forfeiture of $919 pay per month for two months (suspended), and extra duty for 45 days. Several negative counseling statements for various acts of misconduct and performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental status Evaluation, dated 19 September 2011, shows the applicant was diagnosed with Axis I for Alcohol Abuse, axis II for Antisocial Traits, and Axis III for Migraines. It was noted that the applicant could understand and participate in administrative proceedings, appreciated the difference between right and wrong, and met medical retention requirements (i.e., did not qualify for a medical evaluation board). The applicant was dis-enrolled from ASAP due to his recent assault charge. He denied any problems related to substances including alcohol. However, due to his recent charges related to alcohol intoxication he was diagnosed with Alcohol abuse. The remarks section indicated "SM was seen for a Command Directed Evaluation. The applicant did not meet the criteria for an administrative separation by the MEB. The applicant denied any symptoms of PTSD and TBI. He could participate in any administrative proceedings his command deemed necessary. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 149; memorandum for secretaries of the military departments; progress notes (i.e., IED explosion); letter from the Department of Veterans Affairs, dated 15 August 2018; oath of reenlistment; letter from wife reference sexual assault connected letter and investigation case number. The Department of Veterans Affairs letter makes reference to the applicant being permanently and totally disabled, due to service connected disabilities. He is paid at 100 percent, he is service connected at 90 percent and is in receipt of total disability due to individual employability compensation, effective 17 February 2017. 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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, and 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 and a change of his narrative reason for discharge which is misleading. The applicant's available 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 applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." 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 contenting he received a general (under honorable conditions) discharge after two deployments and years of faithful service to his county with a previous honorable discharge for a single offense. He believes his commanding officer described his behavior inaccurately. 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 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 applicant contends his current characterization of service has resulted in an injustice. He contends he has experience significant personal and family problems that affected his ability to serve (his wife was sexually assaulted by his team leader, which resulted in her getting pregnant, and him being angry and sad afterward. He has experienced significant discrimination and racism and unfairness at the same time that he was struggling with his untreated PTSD condition, which changed his behavior and caused him to not act normally. During his second deployment he was wounded in combat in Kabul by an IED instrument of war and as a result he sustained (a concussion, nose fracture, eyes condition, broken ribs, finger, toes, neck and back, and knee conditions) significant to the point that today he is unemployable, permanent and totally. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged or discriminated against. In fact, the applicant's Article 15 and numerous negative counseling statements justify a pattern of misconduct. The applicant's statements alone does not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. The applicant's contention in reference to him struggling with untreated PTSD conditions was noted. However the service record does not support and no evidence to support it has been submitted to corroborate the discharge was the result of any medical conditions. The records show that on 19 September 2011, the applicant denied any symptoms of PTSD or TBI and was able to participate in any administrative proceedings his command deemed necessary. The record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military. Additionally, the applicant contends he has experienced significant personal and family problems that affected his ability to serve (his wife was sexually assaulted by his team leader, which resulted in her getting pregnant, and him being angry and sad afterward). However, the record of evidence does not demonstrated that he sought relief in reference to the alleged contention through his command or the numerous Army community service like the Chaplain, Army Community and Family support Services, Community Counseling Center, and other medical resources available to all Soldiers. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. 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. The applicant also contends that he would have received a different discharge status and a purple heart if these errors had not been made. His discharge status should therefore be upgraded to honorable and he should also be awarded a Purple Heart since the Purple Heart is awarded to members of the armed forces who are wounded by an instrument of war in combat. The applicant's contention in reference to the award of the Purple Heart was noted; however, this does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 13 February 2019, 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 AR20180013336 1