1. Applicant's Name: a. Application Date: 22 July 2018 b. Date Received: 29 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 and to change the narrative reason for discharge. The applicant seeks relief contending, in pertinent part and in effect, the discharge was inequitable because of the applicant's mental health condition that had not been identified. The applicant's military career began with stellar performance. However, an injury aggravated during Air Assault School was determined a "service disqualifying degenerative disc disease." By March 2014, the condition was found to be inoperable by Neurosurgery and was not provided any options for pain remediation. The misconduct that led to separation process started two months after the injury and also the start of ongoing profiles, medication, doctor and therapy appointments, and harassment from the unit. The applicant's profiles and medical condition should have required mental health assessment by the command-the applicant's peers and immediate supervisors did not accept this "'invisible'" injury and harassed the applicant daily. The applicant's actions were identified as a pattern of misconduct, rather than deteriorating symptoms due to physical disabilities and medication that further caused major depression, PTSD, and anxiety. By summer 2014, the applicant was dealing with major depression and anxiety, immense pain, harassment, and the lack of support. Upon being discharged and receiving help from VA, the applicant is doing better but admits needing education to obtain a career that does not disable the applicant any further. 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 has no BH diagnoses except for Partner Relational Problem. The applicant received a MEB for back pain with ratings of 30% from the Army and 40% from the VA. VA records indicates that the applicant has been rated as 80% service-connected; 70% for Chronic Adjustment Disorder. In summary, the applicant did not have a BH diagnosis that was mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 25 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 1 May 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 January 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 1 October 2014, he was found liable for loss of military property, in the amount of $3,260.29. On 15 May 2014, he failed to obey a general regulation by showing up in dirty and unserviceable uniform, violation of the standards of AR 670-1. On 5 June 2014, he failed to obey a general regulation by showing up in dirty and unserviceable uniform, violation of the appearances in AR 670-1, and he disobeyed a direct order. On 6 June 2014, he was stopped by a police department for speeding 108 mph in a 55 mph zone. On 7 June 2014, he disobeyed a commissioned officer, 1LT P.H. On 7 august 2014, he failed to report. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Waived, 11 February 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 11 March 2015 / General (Under Honorable Conditions) (The GCMCA, separation authority, indicated he carefully reviewed and considered the complete medical evaluation board proceedings, and have determined that the applicant's conditions were not a direct or substantial contributing cause of the conduct that led to his separation proceedings.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 April 2012 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11C10, 2B Indirect Fire Infantryman / 3 years, 8 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: Negative counseling statements for failing to comply with AR 670-1; having a pattern of failing to follow instructions; lacking discipline and disrespecting his leadership; disobeying a commissioned officer; failing to show accountability for issued items during an OCIE layout; being a suspect in an investigation of loss of government property; failing to maintain his finances; being advised of budget counseling; being recommended for imposition of an Article 15 action; failing to show up for an OCIE layout; failing to be at his appointed place of duty at the prescribed time; and wearing unserviceable uniforms. CG Article 15, dated 12 March 2014, for failing to go to his appointed place of duty at the prescribed time on 21 February 2014, and disobeying an NCO on 11 February 2014. The punishment consisted of a reduction to E-2, forfeiture of $400 (suspended), 14 days of extra duty, and 14 days of restriction (suspended). Report of Supplementary Action under Article 15, UCMJ, dated 19 March 2014, indicates the suspended punishments of forfeiture of $400 and 14 days of restriction, imposed on 12 March 2014, was vacated based on the applicant failing to report for extra duty on 16 and 17 March 2014. Physical Profile, dated 28 May 2014, indicates the applicant was given a permanent profile, "L-3" for "Lumbar Disc Disease." Medical Evaluation Board Proceedings, dated 18 June 2014, reported that the diagnoses listed were incurred while on active duty. Memorandum, dated 29 September 2014, rendered by an investigating officer (IO), reported that subject to his appointment to conduct an informal investigation surrounding the loss of equipment discovered during an OCIE (Organizational Clothing and Individual Equipment) layout, he found the applicant's OCIE, valued at $3,260.29 was lost due to his willful misconduct. The IO recommended the applicant be held financial liable for the missing OCIE, and further commented that the applicant's behavior through his time with the unit depicted a Soldier with weak personal character and a lack of discipline, and that his financial issues provided a possible motive for selling the missing equipment. Report of Medical History, dated 5 September 2014, indicates the applicant and the examiner noted the applicant receiving behavioral health counseling twice in February 2014, and never went back because it was resolved. Report of Mental Status Evaluation, dated 11 September 2014, indicates the applicant was cleared for administrative separation actions or any other administrative actions deemed necessary by his command. The report further indicated that the applicant declined behavioral health services at that time. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence indicate past psychiatric and medical history as diagnosis of depression (at page 14 of his application), and "Major Depressive Disorder, Recurrent" (at page 22). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 22 July 2018, with self-authored statement; supporting statement; VA letter, dated 6 July 2018; medical record entitled "Confidential"; Medical Evaluation Board Narrative Summary; Report of Medical Assessment; Report of Medical History; Physical Profile; Medical Evaluation Board Proceedings; memorandum, dated 11 March 2015, rendered by the Staff Judge Advocate; VA/DOD Joint Disability Evaluation Board Claim; Report of Mental Status Evaluation; Uniform Citation for speeding; memorandum, dated 19 February 2015 (battalion commander's recommendation); memorandum, dated 11 February 2015 (Commander's Report); ERB; and DD Form 214. 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 the characterization of his discharge from general (under honorable conditions) 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 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. By the pattern 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. In consideration of the applicant's quality of his service prior to these incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The applicant contends the discharge was unjust because his mental health condition had not been identified, and his profiles and medical condition should have required mental health assessment by his command when he was discharged. 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 any 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 and to change the narrative reason for his discharge. The applicant's contentions regarding his behavioral health issues; wherein, his physical disabilities and medication caused major depression, PTSD, and anxiety, 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; however, diagnosed after his discharge, and the applicant contends they were contributing factors that led to his misconduct. The separation authority 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. The applicant contends that he was harassed and discriminated by members of his chain of command; 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge and to change the narrative reason for his discharge Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishments. The applicant failed to respond appropriately to these efforts. The applicant contends that he needs education to obtain a career that does not disable him further, perhaps an indication that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veteran's 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 applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12b is "Pattern of Misconduct," and the separation code is JKA. 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 25 January 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 AR20180015735 1