1. Applicant's Name: a. Application Date: 16 January 2018 b. Date Received: 19 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, was unjustly discharged from the Warrior Transition Unit (WTU), while awaiting a medical discharge for PTSD among a few other physical and mental afflictions. In the WTU, the applicant was severely punished for minor infractions leading to a built case for discharge. The applicant was an outstanding Soldier, rising to the rank of Sergeant, without blemish on the record for over four years, including two combat tours in Iraq. The applicant was medically evacuated during the second tour and diagnosed with PTSD. During treatment at the WTU, the applicant was arrested for a DUI resulting from prescribed medications. The applicant pled guilty and was released on one's own recognizance. The applicant was ordered to find a way back to the base. In addition to legal responsibilities and penalties from the State, the applicant was on extra duty and restricted to the barracks for an indefinite period. The applicant was continually scrutinized and targeted for six months until the imposition of an Article 15 action. The applicant was harassed by a squad leader, SGT G.P., causing an eventual move to SSG A.'s squad to avoid contentions. The applicant received extreme punishment of extra duty and restriction, demotion to E-4, and 30 days forfeiture of pay for a DUI. Although the applicant took responsibility for these actions and conduct, the conduct was labeled as a pattern. The applicant had no adverse actions until after a diagnosis of PTSD and prescribed medications. The applicant was awarded a good conduct medal months before the diagnosis. The medical and military records should be taken into consideration for an upgrade. Since discharge, the applicant continued to receive treatment for PTSD and had no medical or legal issues that would show a continuing pattern of misconduct. The applicant is currently a sophomore at a State University and has worked in the Information Technology field with the State and local law enforcement agencies for the past four years. 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 Depressed Mood, Atypical Depressive Disorder with likely Personality Disorder, Major Depressive Disorder and Obsessive Compulsive Disorder. The applicant is 50% service- connected for PTSD from the VA. In summary, the applicant has 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 21 August 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), a prior period of honorable service, and post-service accomplishments. Therefore, 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 7 October 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 June 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to report to his appointed place of duty at the prescribed time for accountability purpose on 12 December 2009, 19 January 2010, 25 January 2010, 7 February 2010, and 26 March 2010. On 8 February 2010, the applicant was charged with driving under the influence (DUI) from the County authorities, while traveling outside the authorized 50-mile radius without permission, and he was unaccountable for the 0630 hours Physical Training (PT) formation. On 6 March 2010, the applicant violated a General Order (Policy Letter 16, paragraph (3)b(1)) by having in his possession, a half-gallon of Earl Williams bourbon. On that same date, the applicant disobey a lawful order from, lied to, and was disrespectful in comportment and language towards a superior commissioned officer. On 25 April 2010, the applicant was arrested by a Police Department for driving under the influence of alcohol (DUI) and detained in the County Jail for two days, causing his absence from duty and missing extra duty that he was performing as a result of a FG Article 15 that he received on 6 April 2010. The applicant disobeyed the lawful order of a commissioned officer when he violated the restriction and extra duty portions of the aforementioned FG Article 15. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 August 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 29 September 2010 / General (Under Honorable Conditions) (The GCMCA stated that the applicant's medical condition was not the direct or substantial contributing cause of his conduct that led to his separation proceedings, and did not warrant disability processing.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 April 2009 / 6 years b. Age at Enlistment / Education / GT Score: 22 / GED / 128 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91F10, Small Arms/Artillery Repairer / 4 years, 11 months, 5 days d. Prior Service / Characterizations: RA (1 November 2005 to 22 April 2009) / HD e. Overseas Service / Combat Service: SWA / Iraq (31 October 2006 to 6 November 2007), (4 June 2009 to 4 October 2009) f. Awards and Decorations: ARCOM; AAM-2; AGCM; NDSM; ICM-2CS; GWOTSM; ASR; OSR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Memorandum, dated 8 March 2010 (Sic?), rendered by the clinical director of ASAP, provides a synopsis on the applicant's treatment in ASAP; wherein, he was enrolled in "Level I outpatient treatment," and that he attended his group screening appointment on 22 April 2010. State of Kentucky Probation Order with its associated documents, dated 27 April 2010, indicates the applicant pleaded guilty and was convicted of the offense of driving under the influence. He was sentenced to 30 days in a county jail, with 28 days being probated to unsupervised for two years; to enroll within 10 days and completing an alcohol or other substance abuse treatment program at a community counseling center, and paying $743 fine by 27 May 2010. Negative counseling statements for being considered for an involuntary separation of patterns of misconduct; disobeying a lawful order of a superior commissioned officer; having a substandard performance by not being in the proper military uniform for an appointment; not maintaining telephonic accountability; failing to inform his chain of command on the incident of hitting a parked car, in which MPs were notified and a report was generated; failing to report to his appointed place of duty at the prescribed time; and making a false official statement to an NCO. Report of Behavioral Health Evaluation, dated 12 May 2010, noted a deferred diagnosis of "AXIS I" and indicated the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. State of Georgia sentencing document with its associated documents, dated 3 August 2010, reflects on the traffic citations issued for an incident occurring on 8 February 2010; wherein, the applicant pleading guilty to "no tag light" and "reckless driving," a reduced charge from DUI, and his sentence consisting of paying in full a fine of $530 by 8 October 2010. Memorandum, dated 29 August 2010, rendered by the clinical director of ASAP, provides a synopsis on the applicant's treatment in ASAP; wherein, he was command referred/enrolled on 8 March 2010, and that the applicant informed ASAP of his arrest for DUI by a police in the state of Kentucky, at the group session he attended on 29 April 2010. i. Lost Time / Mode of Return: Two days (Civilian Confinement on 25 April 2010 to 26 April 2010) / The applicant was released from the confinement. j. Diagnosed PTSD / TBI / Behavioral Health: Medical Evaluation Board Proceedings with its associated documents, dated 4 August 2010, reflects, in pertinent, approved findings on the diagnoses of "Major Depression, Moderate, Chronic, Single Episode, medically unacceptable IAW AR 40-501, Chapter 3-32, and Posttraumatic stress disorder, Chronic, medically unacceptable IAW AR 40-501, Chapter 3-33," that were incurred while he was on active duty. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 16 January 2018, with self-authored statement, and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that since his discharge, he continued to receive treatment for PTSD and had no medical or legal issues that would show a continuing pattern of misconduct. He is currently a sophomore at a State University and have worked in the Information Technology field with the State and local law enforcement agencies for the past four years. 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 available 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 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 he was unjustly discharged, because he was in the process of being medically discharged for PTSD among a few other physical and mental afflictions. 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 evidence has been provided with the request for an upgrade of the discharge. Insofar as the applicant's contentions that he was awaiting a medical discharge, 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's contentions regarding his behavioral health issues which involved being diagnosed with PTSD, were carefully considered. A careful review of the available record 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. 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. In consideration of the applicant's service accomplishments and quality of his service prior to these incidents, 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 contends that he was harassed 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. 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 21 August 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD), a prior period of honorable service, and post- service accomplishments. Therefore, 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 AR20180016533 1