1. Applicant's Name: a. Application Date: 16 June 2019 b. Date Received: 1 July 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. The applicant through counsel seeks relief contending, in effect, most prospective employers will not give him a job interview because of the reason for his discharge, limiting him to low wage employment. His discharge was contrary to Army Regulations, the Manual for Courts-Martial ("MCM") and the Uniform Code of Military Justice ("UCMJ"). He was also denied fundamental due process by the failure to notify him of the true nature of his discharge. He earned numerous awards and decorations to include a combat tour in Afghanistan. He diagnosed with PTSD and receives 70 percent disability benefits. He believes that PTSD was a substantial contributing factor to the actions that resulted in two Articles 15 and subsequently his discharge. He was neither evaluated nor given mental health counseling upon his return from Afghanistan. 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 Adjustment Disorder with disturbance of emotions and conduct and Alcohol Abuse. The applicant is 70% service- connected from the VA. The VA has also diagnosed the applicant with PTSD. In summary, the applicant has a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 11 September 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in- service diagnosis of OBH, and service-connected PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (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: 1 July 2010 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 6 May 2010 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; on 2 October 2009, he received an Article 15 for making false official statements to SFC C. and SGT H.; and on 28 April 2010, he received an Article 15 for failing to obey an order from his company commander, by not signing in with the CQ from (15 April 2010 to 19 April 2010). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 May 2010, applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 June 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 January 2008 / 3 years b. Age at Enlistment / Education / GT Score: 21 years / 1 year college / 100 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91B10, Wheeled Vehicle Mechanic / 2 years, 5 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan, 31 December 2008 to 14 December 2009 f. Awards and Decorations: ARCOM, NDSM, ACM-CS, ASR, OSR, NATO MDL, MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 2 October 2009, for he knew of his duties at or near Forward Operating Base Shank, Afghanistan, was derelict in the performance of those duties in that negligently failed to turn in his cell phone during communication blackout, as it is his duty to do (14 September 2009); with intent to deceive, make to SFC M.C., an official statement, I lost it two months ago, which statement was totally false, and was then known by him be so false (14 September 2009); and with intent to deceive, make to SGT J.H., an official statement, I do not have knowledge of the cameras being in the BAT / HDE container, which statement was totally false, and was then known by him be so false (14 September 2009); reduction to PV2 / E-2, forfeiture of $364 pay for one month (suspended), extra duty and restriction for 14 days. CG Article 15, dated 28 April 2010, for having received a lawful command from CPT D.D.G., his superior commissioned officer, to sign in with the Charge of Quarters, or words to that effect, did willfully disobey the same between (15 April 2010 and 19 April 2010); reduction to PVT / E-1, forfeiture of $338 pay for one month, extra duty and restriction for 14 days. The applicant received numerous negative counseling statements for various acts of misconduct; and notification of pending separation action. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 1 April 2010, shows the applicant had an Axis I diagnosis of adjustment disorder with disturbance of emotions and conduct. He met retention standards in accordance with Chapter 3, AR 40-501 and did not have a psychiatric disorder which warranted disposition through medical channels. He was mentally responsible for his behavior, could distinguish right from wrong and possessed sufficient mental capacity to participate in the proceedings. He was psychiatrically cleared for administrative action. VA Problem Lists, dated 19 October 2010, relates that the list included PTSD, major depressive disorder, recurrent episode, moderate degree, cannabis dependence, continuous use and alcohol abuse. VA Progress Notes, dated 13 January 2011, revealed the applicant was service connected for PTSD and granted an evaluation of 70 percent disabling. He also suffered from depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's letter of responsibility; attorney's brief (15 pages); DD Form 214; National Personnel Records Center documents (49 pages); VA letter, release of information; VA documents (88 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. 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 the characterization of service from general (under honorable conditions) to honorable. 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 through counsel seeks relief contending, most prospective employers will not give him a job interview because of the reason for his discharge, limiting him to low wage employment. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant further contends, his discharge was contrary to Army Regulations, the Manual for Courts-Martial ("MCM") and the Uniform Code of Military Justice ("UCMJ"); he was also denied fundamental due process by the failure to notify him of the true nature of his discharge. 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 these contentions. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly denied fundamental due process. The applicant further contends, he earned numerous awards and decorations to include a combat tour in Afghanistan. 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 also contends, he diagnosed with PTSD and receives 70 percent disability benefits. The applicant submitted VA Progress Notes, that shows the applicant was service connected for PTSD and granted an evaluation of 70 percent disabling. He also suffered from depression. The additionally contends, he believes that PTSD was a substantial contributing factor to the actions that resulted in two Articles 15 and subsequently his discharge; and he was neither evaluated nor given mental health counseling upon his return from Afghanistan. The applicant bears the burden of presenting substantial and credible evidence to support these contentions. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that PTSD was a substantial contributing factor to his misconduct that led to his discharge and he was not evaluated or receive mental health counseling after returning from deployment. 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 11 September 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. in-service diagnosis of OBH, and service-connected PTSD diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / 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 AR20190009753 1