1. Applicant's Name: a. Application Date: 2 May 2019 b. Date Received: 6 May 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the general (under honorable conditions) discharge to honorable and to change the narrative reason for discharge to secretarial authority. The applicant seeks relief contending, in pertinent part and in effect, the applicant's discharge was both improper and inequitable. The applicant's chain of command made material errors by not initiating a medical evaluation board following the applicant's parachuting injury in 2002; by not properly considering the massive Traumatic Brain Injury the applicant incurred during the parachuting accident; and by not taking into consideration the effects of the TBI following the accident. The command failed to act appropriately by not sending the applicant to be evaluated for a medical retirement at an MEB, nor having a physical examination prior to discharge. The applicant suffered from spinal cord injuries and severe TBI/cognitive issues with post concussive syndrome. The applicant struggles with back pain, seizures, dizziness, migraines, and loss of memory are documented in the medical record through May 2004. The applicant was diagnosed with a cognitive disorder NOS on Axis I, and pain disorder and closed head injury on Axis III. Since the discharge, conditions have worsened. Department of Veterans Affairs have rated the applicant 100 percent for "dementia associated with brain trauma and organic anxiety, and post fusion involving L5-S1." Further diagnoses were dementia due to TBI and personality change due to TBI, disinhibited and aggressive type; Axis III as TBI, seizure disorder secondary to TBI; and Axis IV as unemployment and memory impairment. The applicant has also been diagnosed with PTSD and major depressive disorder caused by military service. The applicant's injury irreversibly damaged quality of life. The applicant is significantly restricted from living a normal and productive life. The applciant was an outstanding Soldier prior to his injuries; was the distinguished honor graduate from his ROTC program, passed the 75th Ranger Regiment Assessment and Selection program, and served in combat earning the BSM for a combat parachute assault. The applicant was a high achiever and performer, and intellectually above average. The applicant's TBI caused the applicant to go from an individual with higher than usual intelligence to being cognitively impaired in nearly every way. At the time of discharge, the applicant was unable to thoughtfully evaluate life-altering decisions. The applicant's extensive spinal injuries will cause pain and ongoing medical care for the rest of life. The counsel asserts the applicant's discharge is a prima facie case of a material injustice. The applicant's TBI mitigates the misconduct of the one-time drug use that led to discharge. 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), contains no information regarding the applicant because it was not in use during the applicant's time in service. The applicant is 100% service- connected from the VA. The VA has also diagnosed the applicant with Traumatic Brain Syndrome, PTSD, Depression, Seizure Disorder, Dementia due to Head Trauma and Adjustment Disorder with anxiety and depressed mood. In summary, the applicant has a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 12 August 2020, and by a 5-0 vote, the Board determined the characterization for the applicant's separation is inequitable based on the applicant's length and quality of service and the circumstances surrounding the discharge and combat service. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Unacceptable Conduct / AR 600-8-24, Paragraphs 4-2b and 4-24a(1) / BNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 10 May 2004 c. Separation Facts: NIF (But based on information from the GO Article 15 packet) (1) Date of Notification of Intent to Separate: 4 December 2003 (2) Basis for Separation: The applicant was informed of the following reasons: An act of personal misconduct, in that the applicant use cocaine on 31 August 2003, in violation of Article 112a, UCMJ. Derogatory information, in that on 4 December 2003, the applicant was found guilty at an Article 15 proceedings. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 April 2004 (Applicant's documentary evidence at page 79 indicates the applicant requested resignation in lieu of elimination proceedings. (5) DA Ad Hoc Review Board Recommendation: General (Under Honorable Conditions) (6) Separation Decision Date / Characterization: 29 April 2004 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date Ordered to AD / Period: 15 May 1998 / 3 years Date / Period / Appointment: 15 May 1998 / Indefinite, USAR (Note DD Form 214 show AD on 8 March 1998 and first OER show a "From" date of 9 October 1998) b. Age at Enlistment / Education / GT Score: 25 / BA Degree / NA c. Highest Grade Achieved / MOS / Total Service: O-3 / 13A, FA General / 10 years, 3 Months, 10 days d. Prior Service / Characterizations: ARNG (31 January 1994 to 27 April 1994) / NA IADT (28 April 1994 to 5 August 1994) / HD ARNG (6 August 1994 to 14 May 1998) / HD e. Overseas Service / Combat Service: SWA / Afghanistan (11 September 2001 to 15 January 2002) f. Awards and Decorations: BSM; ARCOM-2; AAM-2; AGCM; NDSM; GWOTEM; GWOTSM; ASR g. Performance Ratings: Six OERs: 9 October 1998 thru 8 October 1999, Outstanding Performance, Must Promote 9 October 1999 thru 8 October 2000, Outstanding Performance, Must Promote 9 October 2000 thru 1 March 2001, Outstanding Performance, Must Promote 2 March 2001 thru 1 March 2002, Outstanding Performance, Must Promote 25 October 2002 thru 19 May 2003, Outstanding Performance, Must Promote 20 May 2003 thru 19 May 2004, Other h. Disciplinary Action(s) / Evidentiary Record: GO Article 15 with its associated documents, dated 4 December 2003, for wrongfully using Cocaine, a controlled substance between 27 August 2003 and 3 September 2003. The punishment consisted of forfeiture of $1942 pay per months for two months and a written reprimand. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Confidential Summary (medical records) provides summary of the applicant's significant traumatic brain injury and diagnoses (page 176-184) and Mental Disorders (pages 221-248) and PTSD diagnosis (page 228). VA Rating Decision, dated 9 December 2004, indicates the applicant was granted an evaluation of 100 percent for service-connected dementia associated with brain trauma and organic anxiety syndrome. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 2 May 2019, with counsel-authored brief with attachments identified as Exhibit 1 through Exhibit 38 (1-DD Form 214 (5 August 1994); 2-NGB Form 22; 3-Appointment Orders: 4-NGB discharge orders; 5-ORB; 6-memorandum (line of duty investigation), dated 13 August 2002; 7-Statement of Medical Examination and Duty Status; 8-History and Physical Examination and Medical Records; 9-Positive Drug Report; 10-Medication Profile; 11-Positive Urinalysis litigation packet; 12-Article 15 Summary Sheet; 13-Punishment Worksheet; 14-punitive reprimand; 15-Initiation of Elimination notification; 16-Article 15 Appeal; 17-Article 15 Appeal decision; 18-SJA guidance on Article 15 Appeal; 19-BOI Summary of Board Proceedings; 20-Elimination Action Advisement; 21-Legal Review of BOI; 22-Acknowledgment of receipt; 23-Resignation in Lieu of Elimination Proceedings decision; 24-DD Form 214; 25-Radiologic Examination Report; 26-Records of Medical Care; 27-Confidential Mental Health Report; 28-Outpatient Clinic Note; 29-Consent Form for Chronic Narcotic Pain Medication; 30-Confidential Summary (medical records) (page 177); 31 and 32 -VA Rating Decision, dated 9 December 2004; 33-VA Rating Decision, dated 28 August 2005; 34-VA letter, dated 29 September 2005; 35-Confidential Summary (medical records); 36-Neuropsychological exam and Progress Notes; 37 and 38-VA letters, dated 29 August 2016 and 17 July 2017; and 39-six OERs. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. REGULATORY CITATION(S): Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. 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 "BNC" as the appropriate code to assign Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, paragraphs 4-2b and 4-24a(1), unacceptable conduct, pursuant to resignation or voluntary discharge in lieu of elimination proceedings. 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 to secretarial authority. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The available record contained in the Article 15 packet and the applicant's documentary evidence confirms the applicant's discharge, based on unacceptable conduct, 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 Army officers. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant provided no corroborating evidence demonstrating that the command's action was erroneous or sufficient evidence showing his service mitigated the unacceptable conduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends the discharge was unjust because his chain of command made material errors by not initiating a medical evaluation board following the applicant's parachuting injury in 2002; by not properly considering the massive Traumatic Brain Injury the applicant incurred; by not taking into consideration the effects of his TBI following the accident; and by the command failing to act appropriately by not sending him to be evaluated for a medical retirement at an MEB, nor having a physical examination prior to his discharge. His contentions were carefully considered; 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 and to change the narration reason for his discharge. The applicant's contentions regarding his suffering from spinal cord injuries and severe TBI/cognitive issues with post concussive syndrome, and PTSD that resulted from his parachuting injury in 2002, 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 traumatic brain injury 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 to secretarial authority; 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 4, paragraph 4-2b is "Unacceptable Conduct," and the separation code is BNC. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant a change to the narrative reason for his discharge. Based on the available record, 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 12 August 2020, and by a 5-0 vote, the Board determined the characterization for the applicant's separation is inequitable based on the applicant's length and quality of service and the circumstances surrounding the discharge and combat service Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / 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 AR20190006200 1