1. Applicant's Name: a. Application Date: 5 February 2019 b. Date Received: 8 February 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code. The applicant through counsel seeks relief contending, in effect, the discharge was procedurally defective. The discharge was not fair at the time. The discharge is not fair now. The applicant struggled with substance and alcohol abuse. The applicant joined Narcotics Anonymous ("NA") and has been clean ever since. The applicant now leads a more productive life and is receiving treatment for mental health issues. The applicant was never offered or provided the opportunity for rehabilitation. The command in this case did not have the proper authority to administratively separate the applicant. The applicant requests that this derogatory information be removed from the record. In a records review conducted at Arlington, VA on 13 September 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 26 contains an erroneous separation code of JKM. In view of the error, the Board directed an administrative correction to block 26 to read JKB, as required by Army Regulations. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct / To Be Determined / JKM / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 20 April 2004 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 3 November 2003 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he was convicted in the Superior Court for the State, Third Judicial District at e, for conspiracy to commit robbery in the first degree. He received a sentence of five years imprisonment, with three and a half years suspended, and three years probation. (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: 2 February 2004 (5) Administrative Separation Board: The applicant requested consideration of his case by an administrative separation board. He conditionally waived his right to have his case considered by an administrative separation board, contingent upon him receiving a general (under honorable conditions) discharge. On 4 March 2004, the applicant was notified to appear before an administrative separation board and advised of his rights. On 16 March 2004, the administrative separation board convened. The applicant appeared with counsel. The board recommended the applicant be discharged with issuance of a characterization of service of under other than honorable conditions. The separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge. (6) Separation Decision Date / Characterization: 8 April 2004 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 October 2001 / 3 years b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Specialist / 2 years, 5 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Alaska / None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: None i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); Attachment 1, two DD Forms 214; Attachment 2, legal brief (12 pages); Attachment 3, personal statement (two pages); and Attachment 4, military files, chapter 14 discharge packet / medical documents (27 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 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. 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, Sec II, misconduct. 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 an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation to include the RE code. 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 misconduct, the applicant diminished the quality of his service below that meriting a general (under honorable conditions) or 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 requested a change to the narrative reason for separation to include RE code. AR 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, Sec II, misconduct. The regulation further stipulates that no deviation is authorized. 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. The applicant through counsel seeks relief contending, his discharge was procedurally defective; his discharge was not fair at the time and his discharge is not fair now. 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 or unfairly discharged. The applicant further contends, he struggled with substance and alcohol abuse; and he was never offered or provided with the opportunity for rehabilitation. AR 600-85, paragraph 7-10 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. The applicant also contends, he joined Narcotics Anonymous ("NA") and has been clean ever since; and he now leads a more productive life and is receiving treatment for his mental health issues. The applicant is to be commended for his efforts. However, these contentions are not matters upon which the Army Discharge Review Board grants a change in discharge because they raise no matter of fact, law, procedure, or discretion related to the discharge process, nor or they associated with the discharge at the time it was issued. The applicant additionally contends, his command in this case did not have the proper authority to administratively separate him. 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 applicant requests that this derogatory information be removed from his record. The Army Discharge Review Board is not empowered to remove derogatory information from a former service member's record. If an applicant believes there is an error or injustice, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. The record of evidence shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, Sec II, misconduct. 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, Sec II, misconduct. In view of the foregoing, it appears that block 25, Separation Authority should read AR 635-200, Chapter 14, Sec II and block 26 Separation Code should read "JKB." 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 13 September 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 26 contains an erroneous separation code of JKM. In view of the error, the Board directed an administrative correction to block 26 to read JKB, as required by Army Regulations. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: JKB / 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 AR20190003390 1