1. Applicant's Name: a. Application Date: 5 November 2018 b. Date Received: 1 February 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, was diagnosed with PTSD by a Veterans Affairs (VA) mental health provider. The legal and procedural error based on legal insufficiency of each non-judicial punishment proceeding and administrative separation proceeding. The applicant went AWOL for two days because the applicant could no longer endure the sergeant's abusive treatment. 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 Acute Reaction to Stress, ADHD, Adjustment Disorder, Anxiety Disorder, Depression, and Nicotine Dependence. The applicant is 60% service-connected; 50% 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 25 September 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, and the circumstances surrounding the discharge (i.e. post- service diagnosis of PTSD). 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: 20 March 2012 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 13 January 2012 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he received a FG Article 15 for thirteen counts of failure to report on 20 July 2011; he then received a CG Article 15 for one charge of AWOL on 6 October 2011; and his actions were not becoming of a Soldier and did not live up to the Army Values. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 23 January 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 January 2006 / 5 years b. Age at Enlistment / Education / GT Score: 21 years / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 4 years, 2 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan, 30 July 2009 to 23 July 2010 f. Awards and Decorations: ARCOM; AGCM-2; NDSM; ACM-2CS; GWOTSM ASR; OSR; NATO MDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 20 July 2011, for failing to go at the time prescribed to his appointed place of duty x13 (25 June 2011, 26 June 2011, 24 June 2011, 23 June 2011, 6 June 2011, 1 June 2011, 19 May 2011, 10 May 2011, 5 May 2011, 10 February 2011, 10 February 2011, 1 November 2010 and 26 October 2010); reduction to PV2 / E-2, forfeiture of forfeiture of $822 pay for two months (suspended), extra duty for 45 days and restriction for 45 days (suspended). CG Article 15, dated 5 October 2011, for being AWOL (11 July 2011 to 13 July 2011); reduction to PVT / E-1, forfeiture of $342 pay (suspended), extra duty for 14 days, restriction for 14 days (suspended). The applicant received numerous negative counseling statements for various acts of misconduct; being recommended for an Article 15 and failing the APFT. i. Lost Time / Mode of Return: AWOL for 2 days, 11 July 2011 to 12 July 2011; returned to unit. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 30 November 2011, relates the applicant had an Axis I diagnosis of ADHD, predominantly hyperactive-impulse type. He was screened for PTSD and TBI. These conditions were either not present or, if present, did not meet AR 40-501 criteria for a medical evaluation board. He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in administrative / board proceedings. He was psychiatrically cleared for any administrative action deemed appropriate by Command. VA benefits letter, dated 23 August 2017, relates the applicant was service connected for PTSD and assigned an evaluation of 50 percent disabling, effective 21 March 2012. Subsequently, he was assigned an evaluation of 70 percent disabling, effective 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief; brief for applicant / petition (15 pages); Exhibit A, National Personnel Records Center documents (149 pages); Exhibit B, self-authored statement (two pages); Exhibit C, letter, VA benefits (ten pages); Exhibit D, Memorandum For Secretaries of the Military Departments, Subject: Clarifying Guidance lo Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (five pages). 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 Army allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave. Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation. 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 "JKF" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter, 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 service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant's 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. By the documented pattern of misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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 requests a change to the narrative reason for separation. 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 regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending, he was diagnosed with PTSD by a Veterans Affairs (VA) mental health provider. The applicant submitted a VA benefits letter, which shows he was service connected for PTSD and was subsequently assigned an evaluation of 70 percent disabling, effective 16 May 2017. The applicant further contends, the legal and procedural error based on legal insufficiency of each non-judicial punishment proceeding and his administrative separation proceeding. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. In fact, the applicant's two Articles 15, numerous negative counseling statements and several failures to report justify a pattern of misconduct. The applicant also contends, the quality of his service during the period of his service. 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. The applicant additionally contends, he went AWOL for two days because he could no longer endure his sergeant's abusive treatment. 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 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 September 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, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD). 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 AR20190002809 6