1. Applicant's Name: a. Application Date: 6 March 2019 b. Date Received: 22 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, was discharged while suffering from the discriminatory practices and remnants of the DADT policies. The isolation and ostracization from the command element led the applicant to self-medicate with spice to relax and sleep from the unnecessary anxiety, harassment and fear from Soldiers in the unit. The applicant was suffering from anxiety and fear and could not sleep. The misconduct was directly attributable to spice use and the spice use was attributable to the stress and isolation from the applicant's sexuality. It was in error and unjust to separate a gay Soldier with a general (under honorable discharge). The applicant served honorably and received a personal award and decoration for service. In a records review conducted at Arlington, VA on 27 January 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: 16 October 2017 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 5 September 2017 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; he wrongfully possessed about 6.3 grams of spice between (2 November 2016 and 3 December 2016); he was derelict in the performance of his duties between (1 October 2016 and 6 November 2016); he violated lawful orders and regulations between (2 November 2016 and 3 December 2016); he was disrespectful towards a noncommissioned officer (3 November 2016); he willfully disobeyed lawful orders (1 November 2016 and 20 November 2016); he failed to go to your appointed place of duty between (1 November 2016 and 20 November 2016); and he made a false official statement (4 November 2016. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 September 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 September 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 March 2014 / 5 years b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 3 years, 7 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, NDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 17 June 2015, for being disrespectful in deportment toward SGT E.J.G., a noncommissioned officer, who was in the execution of his office, by saying to him, "Anything else Sergeant," or words to that effect (3 November 2016); he knew of his duties, was derelict in the performance of those duties in that he negligently failed to assemble his equipment for prepare to deploy order, as it was his duty to do (between (1 October 2016 and 6 November 2016); with intent to deceive, make to SGT E.J.G., an official statement, " I am in Watertown, getting something to eat", or words to that effect, which statement was totally false, (4 November 2016); having received a lawful order from SGT E.J.G., a noncommissioned officer, to ensure his living quarters were inspection ready NLT 0530, 7 November 2016, an order which it was his duty to obey, did willfully disobey the same (7 November 2016); having received a lawful order from SGT E.J.G., a noncommissioned officer, to report to all appointed duty assignments 30 minutes prior until further notice, an order which it was his duty to obey, did willfully disobey the same (between 7 November 201 6 and 17 November 2016); and without authority, fail to go at the time prescribed to his appointed place of duty x2 (16 November 2016 and 21 November 2016); reduction to PFC / E-3, extra duty and restriction for 14 days. FG Article 15, dated 23 February 2017, for having knowledge of a lawful order issued by LTC M.J. an order which it was his duty to obey, did fail to obey the same by wrongfully smoking inside the barracks room between (2 November 201 6 and 3 December 2016); having knowledge of a lawful order issued by LTC M.J., an order which it was his duty to obey, did fail to obey the same by wrongfully possessing drug paraphernalia inside the barracks room between (2 November 2016 and 3 December 2016); and wrongfully possessed about 6.3 grams of Spice between (2 November 2016 and 3 December 201 6); reduction to PVT / E-1 and extra duty for 45 days. Report of Mental Status Evaluation, dated 18 April 2017, reflects the applicant was diagnosed with other substance use disorder and ADHD by history. He screened negative for PTSD, TBI, depression and sexual trauma. He met medical retention standards and was cleared for administrative action. The applicant received numerous negative counseling statements for various acts of misconduct; and being recommended for separation. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Attorney's Brief (seven pages); Enclosure 1, DD Form 293 (two pages); Enclosure 2, power of attorney; Enclosure 3, DD Form 214; and Enclosure 4, Memorandum for Secretaries of the Military Departments: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions Sexual Assault, or Sexual Harassment (five pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted 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, 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms 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 misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. 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 requests a change to the narrative reason for separation. 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 regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending, he was discharged while suffering from the discriminatory practices and remnants of the DADT policies. Although the applicant alleges that he was a victim of discriminatory practices during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant further contends, his isolation and ostracization from his command element led him to self-medicate with spice to relax and sleep from the unnecessary anxiety, harassment and fear from Soldiers in his unit. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant also contends, he was suffering from anxiety and fear and he could not sleep. The service record contains no evidence of an anxiety diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant additionally contends, his misconduct was directly attributable to his spice use and his spice use was attributable to the stress and isolation from his sexuality. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. Furthermore, the applicant contends, it was in error and unjust to separate a gay Soldier with a general (under honorable discharge). The record of evidence shows that the applicant was discharged under provisions Chapter 14-12c, misconduct (serious offense) for various acts misconduct and his sexuality was not a reason for his discharge. Lastly, the applicant contends, he served honorably and received a personal award and decoration for his service. 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 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 January 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 AR20190007446 3