1. Applicant's Name: a. Application Date: 10 October 2018 b. Date Received: 15 October 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, the discharge is unjust because it was based on an isolated incident in 24 months of service. Other than the underage drinking incident that occurred early in the enlistment, the record contains no other adverse incident or counseling involving misconduct that would significantly outweigh an otherwise honest and faithful service. Prior to the Article 15 punishment, the applicant was informally punished and subjected to extra duty, and withheld from training. The applicant executed both the regular and extra duties satisfactorily and honorably, despite being kept from training. Following the Article 15 of April 2017, the applicant was officially placed on restriction and extra duty. The medical record would show the applicant suffered from a severe service-related injury to the back during a static-line jump. During and after the medical evaluation, the applicant fulfilled all duties for the next several months. The conduct during this period was the basis for the battalion commander to recommend suspension of administrative separation. In November 2017, although the applicant was still not medically cleared to jump, the command insisted that the applicant either jump or officially refuse. Despite making it clear the applicant would not jump until medically cleared, the command manifested the applicant and again made the applicant sign a statement that the applicant would not jump. The applicant was referred to a battalion-level Article 15 for refusing to jump in November 2017, but legal advised that it was not a lawful charge. Despite having no lawful basis, the applicant was adjudicated and punished for "failure to have moral courage" which is not a legitimate charge under the UCMJ. Again, the applicant accepted the punishment and fulfilled every requirement of what was essentially illegal punishment for the next 45-days. The final physical examinations medically diagnosed the applicant with additional service- related medical issues related to TBI and injuries to the back and knees from jumping, which demonstrated the applicant was not a malingerer. The record showing the quality of overall service, met the standards of conduct and performance of duty. Since discharge, the applicant completed the first semester of community college with a 3.7 GPA, while maintaining employment. The applicant is eager to become a productive member of society by working in a field of study as an intern. However, the employment options and VA benefits are severely restricted by the current discharge. The applicant makes no excuses for the lapse in judgment that caused the applicant to consume alcohol under-age. The applicant paid severely for that decision, both personally and professionally; however, it should not be an incident that follows the applicant for the rest of life just because the applicant was subsequently injured in a jump. Thus the applicant's honest and faithful service justly deserves the appropriate characterization of honorable. 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 Concussion, Asperger's Disorder, ADHD, Anxiety, and Depression. The applicant is 50% service-connected for Adjustment Disorder and Migraine Headaches from the VA. In summary, the applicant had 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 19 February 2020, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of OBHI) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (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: 27 February 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 December 2017, and 19 April 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On 4 February 2017, the applicant consumed alcoholic beverages while under the age of 21, in violation of 82nd Airborne Division Regulation 190-2, paragraph 4a, dated 6 July 2016. (3) Recommended Characterization: General (Under Honorable Conditions) (Note, on 20 April 2017 and 1 May 2017, the company and battalion commanders recommended a 12- and 6-month suspended separation, respectively.) (4) Legal Consultation Date: 14 December 2017, and waived, 20 April 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 January 2018 / General (Under Honorable Conditions) (The suspended separation, dated 4 May 2017, was vacated.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 March 2016 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B1P, Infantryman / 1 year, 11 months, 21 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: MP Report, dated 8 February 2017, indicates the applicant was the subject of an investigation for underage consumption of alcohol. Counseling statements for being placed on final manifest; refusing to jump; and missing an appointment. Report of Mental Status Evaluation, dated 6 April 2017, providing no diagnosis, psychologically cleared the applicant for any administrative action deemed appropriate by the separation authority. CG Article 15, dated 7 April 2017, for violating a lawful general regulation by consuming alcohol under the age of 21 on 4 February 2017. The punishment consisted of 10 days of extra duty. FG Article 15, dated 3 January 2018, for being derelict in the performance of his duties by refusing to conduct airborne operation on 30 November 2017. The punishment consisted of a reduction to E-1, forfeiture of $799 pay per month for two months (suspended), and 45 days of extra duty. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: VA letter, dated 1 June 2018, indicates the applicant was granted an evaluation of 30 percent for "service-connection for adjustment disorder with anxiety and traumatic brain injury." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 10 October 2018; two memoranda, dated 4 May 2017 and 1 May 2017; VA letter, dated 1 June 2018; transcript; and three character reference/supporting statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, he is attending college and maintains an employment. 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 general (under honorable conditions) discharge to honorable. The applicant's available record of service, and the issues and document 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 drug 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 contends the discharge was unjust because it was based on an isolated incident. 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 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. Insofar as the applicant's contentions that the incident that caused his discharge was the only one in his entire Army career, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, 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's contentions about being diagnosed with additional service-related medical issues relating to TBI and injuries to his back and knees, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed. 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 that his employment options and VA benefits are severely restricted by his current discharge. 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. The third party statement provided with the application speak highly of the applicant's performance and character. However, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant's chain of command. 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 19 February 2020, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of OBHI) and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / 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 AR20180015689 1