1. Applicant's Name: a. Application Date: 8 May 2019 b. Date Received: 6 June 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, a narrative reason change and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, there is a procedural defect in the applicant's case. The request for administrative separation can be both command-initiated and initiated by the service-member. In the applicant's case, there was a hasty command-initiated request for separation. The applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped the applicant. During a command-initiated discharge request, under Chapter 10, Army Regulation 635-200: per reference 10-4 (b), consideration should be given to the Solder's potential for rehabilitation, and his/her entire record should be reviewed before taking action. The commander must provide the member reasonable time to overcome deficiencies. In the applicant's case there was a rush to judgment that there was a problem that could not be fixed. The command should have evaluated applicant as to whether the applicant had a long-term problem or whether there was an immediate fix. Counsel states, though the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate the elimination. The instruction also allows for the service member to be able to "fix" the problem. The applicant was not allowed these opportunities. The service- member was never offered or provided with rehabilitation. The command in this case did not have the proper authority to administratively separate applicant. The applicant was treated disparately much harsher than the other Soldier's in the unit and was not allowed to be rehabilitated. The applicant has been diagnosed with behavioral health problems, which should be considered. Since the time of elimination, there have been several changes to the discharge upgrade law. The Under Secretary of Defense issued a memo, which expanded protections for veterans whose adverse discharges were a result of the "invisible wounds" resulting from PTSD, sexual trauma or other mental health conditions. The Kurta Memo is very detailed and provides very useful guidance to support Veterans' discharge upgrade applications. Now the Wilkie memo, issued by then Under Secretary of Defense, issued Guidance to Military Review Boards Regarding Equity, Injustice, or Clemency Determinations. The Secretary noted that "increasing attention is being paid to pardons for criminal convictions and the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions." He also noted that while many states have developed veterans' courts to consider special circumstances associated with military service, states do not have authority to correct military discharges or military records." The Boards have an interest in doing what is right-for both the Veteran and the Service-to ensure fundamental fairness. Our Veterans deserve fair reviews of their cases. The Wilkie Memo helps the Boards and Veterans by providing guidance and standards that authorize Boards to grant relief in order to ensure fundamental fairness. Never ever give up. There is always hope. Counsel states, the general (under honorable conditions) discharge does not serve a further purpose. The events that took place are no longer relevant to applicant's life and the applicant has lived since in as responsible a manner as one could. There is no valid equitable purpose in leaving the discharge in place. 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 Schizoid Personality Disorder. The applicant is 40% service-connected. The VA has also diagnosed the applicant with Persistent Depressive Disorder and Anxious Distress. 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 23 March 2020, 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 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 September 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 August 2018 (2) Basis for Separation: The applicant was informed of the following reasons: He was derelict in the performance of his duties on or about 14 February 2018, by failing to secure a spare M240 barrel; failed to report to his appointed place of duty on or about 24 April 2018; failed to report to his appointed place of duty on or about 25 April 2018; through negligence discharged an M240 on or about 11 April 2018; failed to report to his appointed place of duty on or about 6 February 2018; failed to report to his appointed place of duty on or about 12 June 2018, twice; and, on or about 16 May 2018, failed to adhere to the grooming standard by failing to maintain a cleanly shaven face. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 August 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 August 2017 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 31 / 2-years college / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A1P, Human Resources Specialist / 1 year, 2 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 12 March 2018, for being derelict in the performance of his duties by negligently failed to keep his M240B Machine Gun Spare Barrel secured (14 February 2018). The punishment consisted of a forfeiture of $450 pay; and, extra duty and restriction for 14 days. FG Article 15, dated 11 June 2018, for failing to go at the time prescribed to his appointed place of duty (24 and 25 April 2018); and, through negligence, discharge a M240, while pulling security on guard duty (11 April 2018). The punishment consisted of a reduction to E-1; forfeiture of $819 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 13 June 2018, reflects the suspended portion of the punishment imposed on 12 June 2018, was vacated because the applicant failed to go at the time prescribed to his appointed place of duty (12 June 2018). Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 28 June 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Phase of life problem. The applicant provided a copy of his VA disability rating decision, dated 5 April 2019, which reflects the applicant was rated 30 percent disability for: Persistent depressive disorder with anxious distress. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief with all listed supporting documents; criminal record check; VA rating decision and allied treatment records; college transcripts; Pennsylvania Child Abuse History Certification. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence reflecting he has no criminal records and evidence that he is pursuing his degree. 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 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, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable, a narrative reason change and a reentry eligibility (RE) code 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 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." 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 VA has granted him a service connected disability for Persistent depressive disorder with anxious distress, which was undiagnosed during his sevice and affected his behavior. 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 reflects that on 28 June 2018, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, 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 desires a RE code change. However, 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 applicant contends his command did not afford him the opportunity for rehabilitation. However, 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. Further, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. The applicant contends the events that took place are no longer relevant to applicant's life and he has lived since in as responsible a manner as he could. There is no valid equitable purpose in leaving the discharge in place. 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 third party statements provided with the application speak highly of the applicant's performance. However, 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. As such, none of these statements 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 23 March 2020, 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 AR20190009474 7