1. Applicant's Name: a. Application Date: 6 February 2019 b. Date Received: 22 February 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, that since discharge, the PTSD symptoms have taken a toll. The applicant's life changed drastically-the applicant tried working different jobs which the applicant thought was manageable, but the applicant cannot control the mood swings and anxiety attacks. The applicant cannot provide for the children with these medical conditions, including some that the applicant needs help with. An upgrade would provide medical treatments for all the medical issues. 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 Occupational Problem, Phase of Life Problem, and Partner Relational Problem. The applicant does not have a service- connected rating from the VA. The VA has diagnosed the applicant with PTSD and Major Depressive Disorder. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 27 September 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 31 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant knew of a lawful order issued by CPT X., to wit: to comply with the 35th TTSB Motorcycle Safety Handbook, an order which it was his duty to obey, and he did, at Columbia, South Carolina, on 8 March 2009, failed to obey the same by wrongfully operating a motorcycle without updating his motorcycle packet. This was in violation of Article 92, UCMJ. He received a CG Article 15 for the offense. At Camp Victory, Iraq, between 1 September 2009 and 1 April 2010, the applicant was found in the CHU of SPC X., a woman not his wife, under the covers of her bed. This conduct was prejudicial to good order and discipline and was in violation of Article 134, UCMJ. He received a CG Article 15 for the offense. At Camp Victory, Iraq, on 25 March 2010, the applicant violated a lawful general regulation, to wit: AR 600-20, paragraph 4-14, by wrongfully having an inappropriate relationship with SPC X. This was in violation of Article 92, UCMJ. He received a FG Article 15 for the offense. At Camp Victory, Iraq, on 25 March 2010, the applicant wrongfully had sexual intercourse with SPC X., a married woman not his wife. This was in violation of Article 134, UCMJ. He received a FG Article 15 for the offense. The applicant received a lawful command from 1LT X., his superior commissioned officer, and then known by him to be his superior commissioned officer, to have no contact with SPC X., and he did, at Camp Victory, Iraq, on 25 March 2010, willfully disobeyed the same. This was in violation of Article 90, UCMJ. He received a FG Article 15 for the offense. The applicant engaged in additional misconduct, demonstrating a pattern, under the provision of AR 635-200, paragraph 14-12c; in that on 27 May 2008, the applicant wrongfully appropriated a 2000 Suzuki GXS600 motorcycle, of a value of about $2,000.00, the property of SPC X. This was in violation of Article 121, UCMJ. He received a CG Article 15 for the offense. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 1 March 2011 (The conditional waiver request was disapproved by the GCMCA on 30 March 2011.) (5) Administrative Separation Board: 29 April 2011 / Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 12 May 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2007 / 5 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92A10, Automated Logistical Specialist / 7 years, 2 months, 24 days d. Prior Service / Characterizations: RA (19 February 2004 to 27 April 2006) / HD RA (28 April 2006 to 1 March 2007) / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (20 October 2006 to 14 January 2008), (20 August 2009 to 16 July 2011) f. Awards and Decorations: ARCOM; AAM-3; AGCM; NDSM; ICM-2CS; GWOTSM; KDSM; ASR; OSR g. Performance Ratings: 1 March 2007 thru 29 February 2008, Among the Best 1 March 2008 thru 28 February 2009, Fully Capable 28 February 2009 thru 27 February 2010, Among the Best 28 February 2010 thru 31 March 2010, RFC, Marginal h. Disciplinary Action(s) / Evidentiary Record: Negative counseling statements for the recreational use of a motorcycle and risking himself and his passengers; being aware of the responsibilities and requirements of operating a motorcycle; violating an order; operating a motorcycle with having a valid motorcycle packet; and informing applicant of a no-contact order. CG Article 15, dated 1 July 2009, for disobeying a lawful order on 8 March 2009, and wrongfully appropriating a motorcycle, the property of SPC J.P on 27 May 2008. The punishment consisted of forfeiture of $300, 14 days of extra duty, and an oral reprimand. Military Police Report, dated 20 May 2009, indicates the applicant was the subject of an investigation for larceny of private property. FG Article 15, dated 26 March 2010, for violating a lawful general regulation by having an inappropriate relationship with SPC X. on 25 March 2010; wrongfully having sexual intercourse with SPC X on 25 March 2010; and disobeying his superior commissioned officer on 25 March 2010. The punishment consisted of a reduction to E-4, forfeiture of $500 pay per month for two months (suspended), and 45 days of extra duty. Family Violence Incident Report, dated 10 August 2009, indicates the applicant was charged with committing battery on Ms. X. CG Article 15, dated 18 June 2010, for being found in the bed of SPC X., a woman not his wife, on 1 September 2009. The punishment consisted of a reduction to E-3 and forfeiture of $448 (suspended). Civilian Court Order with General Conditions of Probation with its associated documents, dated 9 September 2010, indicates the applicant received a sentence of one-year probation, of which the applicant was to serve a 10-day confinement, for "Count 1 Family Violence Battery" and "Count 2 Battery." Report of Mental Status Evaluation, dated 14 September 2010, cleared the applicant for any administrative actions deemed appropriate by his command. Record of Supplementary Action under Article 15, UCMJ, dated 20 September 2010, indicates that the suspended of forfeiture of $448 imposed on 18 June 2010, was vacated due to the applicant on 8 September 2010, unlawfully choked Ms. X. until she fainted, in violation of Article 128, UCMJ. Report of Proceedings by Board of Officers with its summarized transcript, and reported findings and recommendations of an Administrative separation board that convened on 29 April 2011, is self-explanatory. i. Lost Time / Mode of Return: 20 days (Civilian Confinement on 25 March 2011 to 4 April 2011, for 11 days, and on 23 May 2011 to 31 May 2011, for 9 days) / The applicant was released from confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence: VA Letters, dated 18 December 2018 and 11 December 2018, indicates the applicant was granted treatment for service-connected PTSD (also claimed as depressive disorder). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 6 February 2019; DD Form 214; VA letter, dated18 December 2018; and VA Rating Decision, dated 11 December 2018. 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 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 under other than honorable conditions discharge to general (under honorable conditions). 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 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's contentions regarding his behavioral health issues which involved his PTSD symptoms having a toll on him, were carefully considered. A careful review of the applicant's documentary evidence 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. 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 his current discharge limits his medical care, and an upgrade would provide medical care for all his medical issues. 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 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 27 September 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 AR20190004237 1