1. Applicant's Name: a. Application Date: 1 February 2019 b. Date Received: 18 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect: The discharge characterization is inequitable because the misconduct that led to discharge was caused by the applicant's Posttraumatic Stress Disorder, which limited the applicant's total capabilities. The discharge is inequitable because current policies and procedures under which the applicant was discharged differ in material respects from the policies and procedures currently applicable. The discharge characterization is inequitable because an extremely difficult childhood was a mitigating factor in the misconduct that led to discharge. The discharge characterization is inequitable in light of exemplary post-service conduct. The discharge was not in compliance with the statutory requirements set forth in 10 U.S.C. § 1145 and 10 U.S.C. § 1177, deeming the discharge improper. The discharge characterization is inequitable because of the excellent quality of service. The discharge characterization is inequitable because failing to offer an opportunity for rehabilitation to the applicant was an arbitrary and capricious decision that contributed to the characterization of service. The discharge characterization is inequitable because designating the conduct as "serious misconduct" was an arbitrary and capricious designation that contributed to the characterization of service. The discharge characterization is inequitable because the failure to provide the applicant with the proper follow-up treatment the applicant was referred for was an arbitrary and capricious action that contributed to the characterization of service. The discharge characterization is inequitable because to allow the applicant to serve in a war zone and then discharge the applicant after returning home for events that occurred prior to deployment was an arbitrary and capricious action that contributed to the characterization of service. Counsel further details the contentions in an allied legal brief. 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 Substance Use Disorder, Cannabis Intoxication, Alcohol Abuse, Depression and Adjustment Disorder. The applicant does not currently have a service-connected rating from the VA. The VA has diagnosed the applicant with Alcohol Dependence, Depressive Disorder and PTSD. 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 4 October 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 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 September 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 August 2010 (2) Basis for Separation: The applicant was informed of the following reasons: He received a CG Article 15 on 30 April 2009, for a violation of Article 86 (Failure to Report to Appointed Place of Duty). On 30 January 2009, he was charged with a class B misdemeanor for possession of 2 OZ. of marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 August 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 September 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 April 2007 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: 1 January 2009 / 92A10, Automated Logistical Specialist / 4 years, 23 months d. Prior Service / Characterizations: RA, 13 May 2004 - 13 December 2004 / HD (Break in Service) e. Overseas Service / Combat Service: Korea, SWA / Iraq (4 February 2009 - 30 January 2010) f. Awards and Decorations: NDSM, GWOTSM, KDSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 30 April 2009, for failing to go at the time prescribed to his appointed place of duty (between 10 and 15 May 2006). The punishment consisted of a reduction to E-3 (suspended); forfeiture of $432 pay; and, extra duty and restriction for 14 days. The State Of Texas, Order Deferring Adjudication (PRO SE), dated 4 February 2010, reflects the applicant plead NOLO Contendere, to possession of marijuana 2 Oz, a class B misdemeanor, which was considered by the judge, in part, to be sufficient evidence of his guilt. The applicant was placed on community supervision for a period of 12 months; fined $500; and, required to pay court costs. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 22 April 2010, reflects the applicant was not cleared for any administrative actions deemed appropriate by the command. The applicant 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 proceedings. The applicant was diagnosed with: Deferred (Hx of substance abuse, PTSD sx, and possible mTBI). Mental Status Evaluation, dated 30 July 2010, reflects the applicant there was no apparent psychiatric disease or defect which warranted any psychological/psychiatric treatment or disposition through medical channels. Based upon the review of the records and the applicant's interview, the Clinical Psychologist believed that the applicant 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 the administrative proceedings. The applicant was diagnosed with: Hx of Cannabis Dependence; Hx of Alcohol Abuse; and, R/O Depressive D/O. The applicant provided a Psychological Evaluation, dated 8 May 2017, which reflects the applicant was diagnosed with: Posttraumatic Stress Disorder - DSM-5 309.81. 5. APPLICANT-PROVIDED EVIDENCE: Legal brief; and, DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, has maintained steady employment and is now a nurse assistant in Flushing Hospital's Chemical Dependency Unit. Adhering to the values the Army instilled in him; he helps those that are suffering from substance abuse or in recovery. 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 12c, misconduct (serious offense). 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, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant's record of service, 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. 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 contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ"." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. 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 contends the events that caused his discharge from the Army were isolated incidents. Although a isolated incidents, the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends he was suffering from PTSD, which affected his behavior and led to his discharge. Based on this, the applicant contends he should be given liberial consideration for an upgrade of his discharge. The applicant's service record contains documentation that supports a diagnosis of in service Hx of Cannabis Dependence; Hx of Alcohol Abuse; and, R/O Depressive D/O. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 30 July 2010, the applicant underwent a mental status evaluation, which indicates he was mentally responsible and was able to recognize right from wrong. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends it was abritary and capricious actions by his command to discharge him after his deployment for misconduct that occurred prior to his deployment; and, because he was not afforded the opportunity for rehabilitation. However, 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 character of the applicant's discharge is commensurate with his overall service record. Further, 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. Moreover, on 30 July 2010, the applicant underwent a mental status evaluation, which reflects he had no apparent psychiatric disease or defect which warranted any psychological/psychiatric treatment or disposition through medical channels. The applicant was briefed on how to access mental health and medical services during and after duty hours; which he acknowledged. The applicant was also informed he should continue treatment for his civilian traumas. The applicant contends that he had good service which included a combat tour. 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 is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veteran's 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 third party statement provided with the application spoke highly of the applicant's performance. The author recognized his good performance while in the Army; however, the statement did not provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 4 October 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 AR20190004980 7