1. Applicant's Name: a. Application Date: 27 March 2019 b. Date Received: 10 May 2019 c. Previous Records Review: 13 September 2017, AR20160012117 d. 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 and its reentry code. The applicant seeks relief contending, in pertinent part and in effect, the discharge is procedurally defective, and unfair and inequitable-it has served its purpose. The counsel, on behalf of the applicant, contends that in the interest of equity, fairness, and justice, the requested relief be granted. The counsel detailed the circumstances surrounding the events that led to the applicant's discharge. The behavioral health involving the applicant's ADHD had not affected the applicant during service; however, since discharge, the applicant went back on the ADHD medication with anti-depressants, and has been diagnosed with anxiety. The applicant has since received a Bachelor's Degree and several certifications. The applicant was gainfully employed, developed teams, and worked multiple nonprofit organizations in the community and on opening a local brewery with another veteran. The applicant lives a stable and productive life, without incident. The applicant's discharge was a hasty command-initiated separation without any rehabilitation or reasonable time to overcome any deficiencies. The events that led to the applicant's separation are no longer relevant to life-the applicant has lived responsibly since discharge. The applicant requests the derogatory information be removed from the record as its removal will significantly impact on the ability to receive proper benefits and recognitions. 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 no BH diagnoses while on active duty. The applicant does not currently have a service-connected rating from the VA. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a Travel Panel hearing conducted at San Antonio, Texas on 18 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 August 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 August 2005 (2) Basis for Separation: The applicant was informed of the following reasons: On 20 February 2005, the applicant consumed alcohol while under the legal age of 21. On 20 June 2005, he was absent without leave and returned on 27 June 2005. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 August 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 August 2004 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-1 / 21J10, General Construction Equipment Operator / 11 months, 29 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 17 March 2005, for disobeying a lawful order by wrongfully consuming alcohol while underage on 20 February 2005. The punishment consisted of forfeiture of $400 pay per month for two months, and 45 days of extra duty and restriction. FG Article 15, dated 27 July 2005, for being AWOL on 20 June 2005, and remained absent until 27 June 2005. The punishment consisted of forfeiture of $617 pay per month for two months, and 45 days of extra duty and restriction. Negative counseling statements for being recommended for an involuntary separation for pattern of misconduct; being AWOL; and underage drinking. Report of Mental Status Evaluation, dated 2 August 2005, providing no diagnosis, psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: Seven days (AWOL on 20 June 2005 to 26 June 2005) / The applicant returned to his unit. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 27 March 2019; counsel brief; DD Form 214; three character reference/supporting statements; applicant's resume; Report of Medical Examination, dated 13 August 2004; Global Recognition certificate; two Congratulations on Achievement of a Silver award certificates; two Congratulations certificates; Report of Mental Status Evaluation; 25 ADHD Med Checklists; and doctor's letter, dated 21 September 1999. Additional evidence: Obrique BrewCo website articles with Limited Liability Company Operating Agreement, "We are the Mighty" article, and IRS Employer Identification Number. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant, states, in effect that the applicant has since received his Bachelor's Degree and several certifications; he was gainfully employed, developed teams, and worked multiple nonprofit organizations in his community; and he worked on opening a local brewery with another veteran. 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 14-12b 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 "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 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 his general (under honorable conditions) discharge to honorable, and to change the narrative reason for his discharge and its reentry code. 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 pattern 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. In consideration of the applicant's post-service accomplishments, 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. The third party statements provided with the application speak highly of the applicant's character and performance. While they recognize his good conduct after leaving the Army, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 the discharge was unjust because his discharge was a hasty command- initiated separation without any rehabilitation or reasonable time to overcome any deficiencies, and it was procedural defective, unfair, and inequitable. 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. The applicant's statements through his counsel alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. The applicant's contentions regarding his behavioral health issues involving Attention Deficit Disorder and anxiety, were carefully considered. A careful review of the applicant's documentary evidence indicates the applicant's behavioral health issues 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 requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12b is "Pattern of Misconduct," and the separation code is JKA. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Insofar as the request to change the reentry code, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former Service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a Travel Panel hearing conducted at San Antonio, Texas on 18 September 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. 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 AR20190006004 6