1. Applicant's Name: a. Application Date: 28 June 2019 b. Date Received: 8 July 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the 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, the applicant was suffering from PTSD during deployment and because of this the reason for the discharge was wrong. Because of PTSD, the applicant had problems at work and with family, resulting a loss of jobs and an assault on spouse. The stigma of having PTSD the Bronx District Attorney's office used against the applicant in his murder conviction, which was a separate case, where he was a 100 percent innocent. Another person confessed to the murder prior to the trial, but the District Attorney failed to investigate and now the applicant is locked up for someone else's crime. The applicant is currently on a direct appeal and is confident the truth will be brought to light. The applicant states he was not given the proper mental health prior to discharge. The applicant was declared (sic) after being admitted to the VA hospital in 2012, where the applicant was given counseling, therapy and medication. 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 PTSD. The applicant is 70% service-connected 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 records review conducted at Arlington, VA on 14 August 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: 30 November 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2007 (2) Basis for Separation: The applicant was informed of the following reasons: On 9 November 2006, he failed to go to his appointed place of duty, which resulted in a Summarized Article 15; On 28 August 2007, he was disrespectful to a Non-commissioned officer; On 20 September 2007, he disobeyed an order by a Noncommissioned Officer, to come back to the office; he was disrespectful toward a superior Non-commissioned officer; he disobeyed an order by a Non-commissioned officer, to "at ease"; and he communicated a threat to First Sergeant Kent A. Galvin; which acts resulted in a field grade article 15; and, On 4 October 2007, he disobeyed a lawful order. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 23 October 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 October 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 September 2005 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 19 / GED / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 years, 3 months, 29 days d. Prior Service / Characterizations: USAR, 2 August 2004 - 25 September 2005 / HD IADT, 18 August 2004 - 17 December 2004 / UNC (Concurrent Service) e. Overseas Service / Combat Service: Germany, SWA / Iraq (28 July 2007 - 16 November 2007) f. Awards and Decorations: NDSM, GWOTSM, ICM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 20 January 2006, for willfully damage a laptop computer and monitor, the amount of the damage being the sum of about $2500, the property of Mrs. S. B (19 November 2005); orally communicate to Mr. H. B., certain indecent language and a threat, to wit: "Fuck you" and "come outside, I'll beat your brain out"(19 November 2005). The punishment consisted of a reduction to E-1; forfeiture of $633 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Summarized Article 15, dated 20 June 2006, for failing to go at the time prescribed to his appointed place of duty (16 and 17 May 2006); and, willfully disobeyed a lawful order to write a three hundred word essay (17 May 2006). The punishment consisted of extra duty for 7 days. Summarized Article 15, dated 14 February 2007, for failing to go at the time prescribed to his appointed place of duty (9 November 2006). The punishment consisted of extra duty for 6 days. FG Article 15, dated 8 October 2007, for failing to obey a lawful order (20 September 2007); for disrespectful language towards an NCO (26 September 2007); willfully disobeyed a lawful order from NCO (20 September 2007); and, one additional charge, however he document was illegible. The punishment consisted of a reduction to E-2; forfeiture of $729 pay (suspended); and, extra duty for 45 days. Report of Mental Status Evaluation, dated 20 September 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a thinking process. Report of Mental Status Evaluation, dated 21 September 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a thinking process. Several Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA Benefits decision, dated 1 April 2019, which reflects the applicant was rated 70 percent disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; VA Benefits decision with allied documents; VA Rating Decision with allied documents; self-authored letter; News Article, HEADLINE: Bronx DA, News 12 Battle Over Outtakes in Murder Case; Letter to applicant from counsel; New York Supreme Court, Brief for Defendant-Appellant with allied documents. 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 14-12b 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 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 desires to rejoin the Military Service. 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 he was not afforded the opportunity for mental health treatment and that the VA has granted him a service connected disability for PTSD. 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 21 September 2007, 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. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service 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 14 August 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 AR20190010754 6