1. Applicant's Name: a. Application Date: 6 February 2019 b. Date Received: 8 February 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for discharge. The counsel, on behalf of the applicant, seeks relief contending, in pertinent part and in effect, the applicant was unjustly and erroneously discharged with a UOTHC. In addition to an upgrade, the applicant requests a discharge for the convenience of the government and a reentry code of "1." The discharge is based on three errors: the basis for separation was procedurally defective at the time of discharge; the discharge was unfair at the time; and the UOTHC discharge is inequitable now- it has served its purpose. The applicant's entire military career is reflected of an outstanding service. the applicant received numerous awards and recognitions- gave as much as possible to the US Army. The applicant, who was diagnosed with PTSD and TBI, requires VA medical care, but the UOTHC discharge is preventing the applicant from receiving the proper care that is due. The medical diagnoses should be granted liberal considerations; in that they are service- connected. (The counsel detailed the circumstances and events surrounding the applicant's discharge, resulting from being indicted and conviction upon being found guilty. Despite the trial appearing to be biased and receiving an Article 15 for violating a no-contact order when the attorney advised the applicant to persuade Ms. A. to drop the charges as there was no evidence of sexual abuse, the applicant served time in jail and was reduced from SFC to PVT E-1, and was denied the request for retirement after serving more than 21 years. The applicant was not provided the formal notification and the opportunity to rehabilitate, to overcome any deficiencies that were related to physical and behavioral conditions.) Since discharge, the applicant sought to fix life as the applicant received statements from coworkers, supervisors, and friends attesting positively to the applicant's character while in the Army. The applicant now lives a stable and productive life. The applicant continues to receive treatment for mental health issues. The applicant requests the derogatory information be removed from the record. In the interest of equity, fairness, and justice, the applicant's request should be granted. The success of the appeal to ADRB will have a significant impact on the applicant's ability to receive proper benefits and recognition. 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 due to the period of service, the applicant does not have any active duty medical records. The applicant does not currently have a service-connected rating from the VA. The applicant does not currently have a diagnosis of PTSD or TBI. In summary, the applicant does 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 29 July 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: Misconduct (Civil Conviction) / AR 635-200, Chapter 14, Section II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 22 February 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 October 2003 (per applicant's documentary evidence) (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted by a civil court for indecent liberties with a child, and received a sentence of 13 months. (3) Recommended Characterization: General (Under Honorable Conditions), subsequently in December 2003, Under Other Than Honorable Conditions (4) Legal Consultation Date: 27 October 2003 (Per applicant's documentary evidence) (5) Administrative Separation Board: 5 January 2004, Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 8 March 2005 (HQDA) / Under Other Than Honorable Conditions (Note the GCMCA recommended for the HQDA to approve the administrative separation with an Under Other Than Honorable Conditions discharge and disapprove the applicant's request for retirement. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 December 1998 / Indefinite b. Age at Enlistment / Education / GT Score: 20 years / GED / 117 c. Highest Grade Achieved / MOS / Total Service: E-7 / 18D1V, 2B SF Medical Sergeant and 91W10, Health Care Specialist / 22 years, 5 months, 20 days (includes 383 days of involuntary excess leave, creditable for all purposes, except pay and allowances on 5 February 2005 to 22 February 2006) d. Prior Service / Characterizations: USAR (15 July 1982 to 30 September 1982) / NA IADT (1 October 1982 to 11 March 1983) / HD USAR (12 March 1983 to 3 October 1983) / NA RA (4 October 1983 to 17 September 1987) / HD RA (18 September 1987 to 18 March 1993) / HD RA (19 March 1993 to 18 December 1998) / HD e. Overseas Service / Combat Service: Panama, Kosovo / Kosovo (13 October 1998 to 19 December 1998) f. Awards and Decorations: ARCOM-3; JSAM-3; AAM-5; AGCM-5; NDSM-2; KCM; NCOPDR-3; ASR; OSR; NATO MDL g. Performance Ratings: Four NCOERs rendered during period of service under current review: December 1998 thru November 1999, Among the Best December 1999 thru November 2000, Among the Best December 2000 thru November 2001, Fully Capable December 2001 thru November 2002, Among the Best h. Disciplinary Action(s) / Evidentiary Record: FG Article 15 with its associated documents, dated 21 February 2003, for disobeying a no- contact order on 10 February 2003. The punishment consisted of 14 days of extra duty (suspended). Report of Proceedings by Board of Officers with its summarized transcript, and reported findings and recommendations of an Administrative separation board that convened on 5 January 2004, is self-explanatory. i. Lost Time / Mode of Return: 383 days (Civilian Confinement on 2 October 2003 to 19 November 2004) / The applicant was released from confinement. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 6 February 2019; DD Form 214; discharge orders; Record of Emergency Data; SGLI; DA Form 2-1 (Personnel Data); attorney-authored brief; separation file with government exhibits for an administrative separation board hearing and Report of Proceedings by Board of Officers with its summarized transcript of the proceedings and the reported findings and recommendations; Service School Academic Evaluation Report; Findings of Fact, Conclusions of Law and Order of Discipline by Consent involving the applicant's attorney; applicant's record of service (awards, training, and evaluation reports); and Statement of Medical Examination and Duty Status/Line of duty, dated 5 and 12 February 1988. 6. POST SERVICE ACCOMPLISHMENTS: No specific achievements 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 14-5 stipulates that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: (1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended. (2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (See AR 600-8-19.) 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, misconduct (civil conviction). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" 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 to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. 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. By the serious incidents of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. The service record further confirms that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as "4." The discharge packet confirms the separation authority approved the discharge by reason of misconduct (civil conviction). Soldiers processed for misconduct (civil conviction) will be assigned an SPD Code of JKB and an RE Code of 3. The applicant's numerous contentions as bases for his discharge being unjust and that he was erroneously discharged with a UOTHC, were carefully considered. 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 and through his counsel's brief, 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 involved being diagnosed with PTSD and TBI, were carefully considered. However, a careful review of the available record and the applicant's documentary evidence provides no diagnosis of any behavioral health issues, service-connected PTSD, or TBI. Therefore, there is no basis upon which the Board could determine whether the applicant's behavioral health issues were significant contributing factors to his misconduct. Although the applicant is scheduled for a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., a diagnosis of PTSD and/or behavioral health issues by a competent medical authority) for the Board's consideration because they are not available in the official record and the applicant did not provide medical diagnoses of his behavioral health issues and/or PTSD and TBI. The applicant contends he was not provided the opportunity to rehabilitate, to overcome any deficiencies that were related to his physical and behavioral conditions. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends he was diagnosed with PTSD and TBI that requires VA medical care, but the UOTHC discharge is preventing him from receiving the required proper care. However, 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 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, Section II is "Misconduct (Civil Conviction)," and the separation code is JKB. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant also requests his reentry code. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. 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 29 July 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 AR20190002709 2