1. Applicant's Name: a. Application Date: 4 April 2019 b. Date Received: 12 April 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of general (under honorable conditions) discharge to 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, who served in OIF, was awarded a CIB and a PH. The applicant was diagnosed with suffering from an in-service PTSD, and a service-connected PTSD by VA. The applicant was a superior Soldier most of the time in the Army; was awarded an AAM and an ARCOM; received a stellar NCOER; and served two deployments to Iraq. The applicant was involved in numerous firefights during the first deployment and witnessed the death of fellow Soldiers and Iraqis. The applicant was in direct combat with the enemy as documented by the CIB and PH. The applicant began suffering from PTSD symptoms after the first deployment. The applicant's mental health sharply deteriorated after the second deployment. The behavior sharply deteriorated beginning in December 2009 and continuing through August 2011. The applicant was counseled for various instances of minor misconduct. The applicant received three non- judicial punishments for matters, essentially, involving disobedience to the rules of military discipline. The applicant was referred for disability processing. The evaluation of a medical evaluation board (MEB) determined the applicant had medically disqualifying PTSD, and was referred to a physical evaluation board (PEB) for disability adjudication. However, disability separation never occurred because the command wanted to separate the applicant administratively with a UOTH for the misconduct. The psychology resident who medically evaluated the applicant did not endorse the MEB findings of PTSD and stated that the applicant should be held accountable for the actions as there was no evidence of a condition that absolved the applicant of the responsibility for the behaviors. On an equitable basis, the applicant should be granted relief under the Kurta Memorandum. The applicant had a condition or experience by involvement in combat as documented by a CIB and PH, and there is an in-service diagnosis of PTSD by MED and PEB, and that by VA, considered a persuasive evidence. PTSD affected the applicant's conduct-it is notable that the applicant was a superior Soldier prior to the deployments and the applicant's behavioral health deteriorated only the two deployments. As to whether the applicant's misconduct was severe or premeditated, the separation was characterized as not complying with the requirement of military discipline, such as not showing up when required, being disrespectful, and not following orders, violations that do not rise to the level of violent crime or crime of moral turpitude; thus the mitigation arising out of PTSD was not outweighed by the severity of his misconduct. Impropriety of the applicant's discharge is the improper non-clinical psychologist examination. The applicant, entitled to an examination by a clinical psychologist or psychiatrist by statute, was instead examined by a post-doctoral psychology resident, who was not a clinical psychologist as required by the statute. The resident psychologist was relatively inexperienced in evaluating the mental health of combat Soldiers. The command's reliance on that examination findings toward the applicant's administrative separation did not comply with the requirements of 10 USC § 1177. The review by the supervising clinical psychologist did not suffice because the clinical psychologist was required by statute to perform the examination. Thus there was impropriety in the applicant's separation proceeding. 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 Malingering, Adjustment Disorder, Anxiety Disorder NOS, Major Depressive Disorder, Personality Disorder traits, Alcohol Abuse, Opioid Abuse, Cannabis Abuse, mTBI, and PTSD. The applicant is 70% service- connected for PTSD from the VA. The VA has also diagnosed the applicant with Impulse Control Disorder, Polysubstance Abuse, Alcohol Dependence, Depressive Disorder, and Antisocial Personality traits. In summary, the applicant's BH diagnoses are partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 1 April 2020, and by a 3-2 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 / General (Under Honorable Conditions) b. Date of Discharge: 21 October 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 April 2011 and 11 August 2011 (additional misconduct) (2) Basis for Separation: The applicant was informed of the following reasons: for malingering (exaggerating symptoms validity evaluation), disrespecting a commissioned officer, and failing to report on 10 separate occasions. Additional misconduct are malingering, disrespecting a commissioned officer, failure to report, disobeying a direct order from a commissioned officer, disrespecting an NCO, disobeying a lawful order from an NCO, and failing to follow written orders or regulation. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 4 April 2011 (5) Administrative Separation Board: 13 September 2011 / Under Other Than Honorable Conditions (6) Separation Decision Date / Characterization: 5 October 2011 / General (Under Honorable Conditions) (The GCMCA also reviewed the Medical Evaluation Board results and found the applicant's medical condition was not the direct or substantial cause of the conduct that led to his separation and that other circumstances in his case did not warrant disability processing.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 November 2008 / 6 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 127 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B2P Infantryman / 6 years, 8 months, 26 days d. Prior Service / Characterizations: RA (26 January 2005 to 18 November 2008) / HD e. Overseas Service / Combat Service: SWA / Iraq (8 August 2006 to 25 October 2007), (5 December 2008 to 17 January 2009) f. Awards and Decorations: PH; ARCOM-3; AAM-3; AGCM; NDSM; ICM-CS-BSS; NCOPDR; ASR; OSR; CIB; MUC g. Performance Ratings: One NCOER rendered during period of service under current review: 1 November 2008 thru 31 October 2009, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Counseling statements for failing to be at his appointed place of duty at the prescribed time on multiple occasions; disrespecting a commissioned officer on numerous occasions; violating the barracks visitation policy; improper handling of personally owned ammunition; improper wearing of the APFT uniform; failing to sign for corrective training; being absent without leave on numerous occasions; and being required to undergo corrective training. FG Article 15, dated 1 March 2011, for malingering on 17 December 2010, violation of Article 83, UCMJ; behaving with disrespect towards a superior commissioned officer on 17 December 2010; and failing to be at his appointed place of duty at the prescribed time on 10 separation occasions on 3, 6, and 8 December 2010, 1 August 2010, 26 July 2010, 21 June 2010, 24 May 2010, 29 March 2010, 29 January 2010, and 18 December 2009. The punishment consisted of a reduction to E-5, forfeiture of $1,420 pay per month for two months (suspended), and 45 days of extra duty and restriction. Record of Supplementary Action under Article 15, UCMJ, dated 7 April 2011, vacated the suspended punishment of forfeiture of $1,410 pay per month for two months, imposed on 1 March 2011, based on wrongfully using provoking words to Miss P.D. on 14 March 2011. CG Article 15, dated 23 May 2011, for leaving his appointed place of duty without authority on two separate occasions on 5 April 2011; being disrespectful towards an NCO on 17 March 2011; and being disorderly by using indecent language to a Government Service employee, Miss P.D. on 17 March 2011. The punishment consisted of forfeiture of $306, 14 days of extra duty, and 14 days of restriction (suspended). FG Article 15, dated 26 July 2011, for disobeying a lawful order on 13 June 2011, being disrespectful in language and deportment towards an NCO on 14 June 2011; and failing to be at his appointed place of duty at the prescribed time on 16 June 2011. The punishment consisted of a reduction to E-4 (suspended) and 30 days of extra duty. Verbatim Findings and Recommendations of the administrative separation board that indicates that on 13 September 2011, the board found the allegations in the notice of administrative separation under AR 635-200, Paragraph 14-12c, commission of a serious offense was supported by a preponderance of evidence that warranted separation and recommended the applicant's separation with an Under Other Than Honorable Conditions. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Reports of Medical History and Assessment, dated 3 March 2011, indicates the applicant and examiner noted behavioral health issues, mTBI, Adjustment Disorder with disturbance of emotions, and PTSD chronic. Report of Behavioral Health Evaluation, dated 18 November 2010, providing "AXIS I" diagnoses as "V70.56 Post Deployment, V61.1 Marital Problem, 309.4 Adjustment Disorder with disturbance of emotions and conduct," psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. Memorandum, dated 22 December 2010, Subject: Routine Command Directed Mental Health Evaluation [the applicant], rendered by a clinical Psychology resident, and reviewed and approved by clinical Neuropsychologist, provides a history of the applicant's behavioral health issues and treatment based on evaluations. (Note throughout the medical records in the separation file, behavioral health issues are noted, including mTBI and PTSD.) Report of Behavioral Health Evaluation, dated 17 March 2011, indicates for "AXIS I" that "Observation for Suspected Mental Condition, R/O Post-Traumatic Stress Disorder, R/O mTBI," and in pertinent part at "REMARKS" that the applicant endorsed some current symptoms of PTSD and mTBI in the screening process." The remarks further included that the applicant "attributed all his symptoms to being related to deployment experiences" and that the applicant was not psychologically cleared for administrative actions; however, final determination regarding separation remained the responsibility of the separation authority. Applicant's documentary evidence: Health Record, dated 24 June 2011, providing "Multiaxial Assessment and Discussion" reports on an "Axis I" assessment as "Posttraumatic Stress Disorder." US Army Physical Evaluation Board letter, dated 20 September 2011, relates finding the applicant physically unfit for continued military service due to Post traumatic migraine headache, central vertigo due to TBI, PTSD, and herniation. VA Rating Decision, dated 13 November 2014, indicates the applicant received an evaluation of 70 percent for PTSD (also claimed as memory loss, concentration problems, light sensitivity, insomnia, major depression, anxiety), and 30 percent for post-traumatic headaches. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 4 April 2019; attorney-authored brief; DD Form 214; enlistment and reenlistment documents; promotion Orders; NPRC letter, dated 26 September 2017; CIB and Parachutist Badge Orders; AAM certificate; ARCOM certificate; NCOER; 22 counseling statements; Article 15, dated 1 March 2011; Record of Supplementary Action under Article 15, UCMJ, dated 7 April 2011; CG Article 15, dated 23 May 2011; FG Article 15, dated 26 July 2011; separation proceedings and decision memoranda; Health Record, dated 24 June 2011; MEB Interview, dated 10 May 2011; Memorandum, dated 22 December 2010, Subject: Routine Command Directed Mental Health Evaluation [the applicant]; Health Record (MEB Addendum NARSUM), dated 24 June 2011, with MEB Proceedings; US Army Physical Evaluation Board letter, dated 20 September 2011; Under Secretary of Defense memorandum, dated 25 August 2017, with attachment; VA Rating Decision, dated 13 November 2014; and an extract with photograph of an Army Medical Center, entitled, "Program Mission" for Clinical Psychology Residency Program. 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 general (under honorable conditions) discharge to honorable and to change the narrative reason for his discharge. 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 an in-service PTSD and referrals to an MEB and PEB, were carefully considered. A careful review of the available record and 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. 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. The applicant contends the discharge was unjust, because of the improper non-clinical psychologist examination and the command's reliance on that examination. 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. In consideration of the applicant's quality of his service and service accomplishments prior to the incidents of misconduct, 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 and to change the narrative reason for his separation. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. 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's separate application for medical disability retirement has been referred to the Army Board for Correction of Military Records (ABCMR). 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 1 April 2020, and by a 3-2 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 AR20190004746 5