1. Applicant's Name: a. Application Date: 9 August 2019 b. Date Received: 12 August 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of an under other than honorable conditions discharge to honorable, a change to narrative reason for discharge to Secretarial Authority, and a change to reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that the discharge was inequitable and unjust because at the time the applicant was separated, the applicant was suffering from mental health issues, including anxiety, depression, and PTSD. The applicant maintains that the applicant did not commit the misconduct that formed the basis of his separation action. Moreover, the allegations made against the applicant even if true did not constitute a pattern of misconduct. Therefore the petition is based on both propriety and equity. The applicant believes that the overall service record at the time of separation and the conduct post-discharge are deserving of an honorable characterization of services. 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 Anxiety Disorder NOS, Bereavement, and Major Depressive Disorder. The applicant is 90% service-connected; 70% for Major Depressive Disorder from the VA. The VA has also diagnosed the applicant with Major Depressive Disorder, PTSD, and Generalized Anxiety Disorder. In summary, due to the basis of separation not being in file, there is insufficient evidence to determine if the applicant's BH diagnoses are mitigating for the misconduct which led to separation from the Army. Due to COVID-19, a telephonic personal appearance hearing was conducted at Arlington, VA on 23 March 2020, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBHI and PTSD), a prior period of honorable service, post-service accomplishments, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 8 August 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: AGR Program, 21 September 2003 / 3 years (The applicant extended his enlistment in the Army Reserve 3 years on 9 August 2006) b. Age at Enlistment / Education / GT Score: 36 / HS Graduate / 85 c. Highest Grade Achieved / MOS / Total Service: E-5 / 63B10, Wheeled Vehicle Mechanic / 20 years, 8 months, 18 days d. Prior Service / Characterizations: ARNG, 21 November 1988 to 1 August 1989 / NA OAD, 2 August 1989 to 7 February 1990 / HD ARNG, 8 February 1990 to 1 June 1993 / GD USARCG, 2 June 1993 to 20 November 1996 / NA (Break-in-Service) USAR, 17 April 1998 to 3 March 2001 / NA USAR, 4 March 2001 to 20 September 2003 / NA (Concurrent Service) e. Overseas Service / Combat Service: Prior Period of Service / SWA / Kuwait -Saudi Arabia (10 February 1991 to 6 June 1992) f. Awards and Decorations: ARCAM, NDSM-2, SWSM-2BSS-2, GWOTSM, ASR, KLM- SA g. Performance Ratings: March 2006 to August 2006, Marginal 1 September 2006 to 15 January 2007, Fully Capable 9 January 2007 to 8 January 2008, Marginal 9 January 2008 to 8 January 2009, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, the Mental Status Evaluation provided by the applicate dated 7 January 2009, indicates that the applicant was diagnosed with an Axis I for Major Depressive Episode, in remission; also as well as unresolved grief which was also remitted, due to the death of his young son in 2006. It was noted that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in administrative proceedings. Other comments were made indicating that based on a review of the applicant records, interview with him that since this event, the applicant had sought and received treatment in different forms and had been compliant with prescribed medications and therapies. At that time a Chapter 5-17 separation was not believed to be appropriated for the applicant. He wished to stay in the Army to finish 20 years of Active Duty Service, and there appeared to be no psychiatric reason why he would not have been able to be an effective Soldier. At that point, it seemed that he had made a great deal of progress with his treating professionals and had dealt with the majority of his issues. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; Hagel Memorandum and Clarifying Guidance; personal records; letters of support; college transcript; additional supporting evidence, including medical evidence (summary of benefits from the Department of Veterans Affairs); several DD Form's 214 to include the one for the period of service under review. The summary of benefits submitted by the applicant shows he has been awarded 90 percent service connected disability. 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, and 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 legal counsel requests an upgrade of his under other than honorable conditions discharge to honorable, a change to his narrative reason for discharge to Secretarial Authority, and a change to his reentry eligibility (RE) code. The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12b, by reason of Pattern of Misconduct, with a characterization of service of under other than honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, 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 appropriate RE code is 3. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that his discharge was inequitable and unjust because at the time he was separated he was suffering from mental health issues, including anxiety, depression, and PTSD. He maintains that he did not commit the misconduct that formed the basis of his separation action. Moreover, the allegations made against him even if true did not constitute a pattern of misconduct. Therefore his petition is based on both propriety and equity. The applicant believes that his overall service record at the time of separation and his conduct post-discharge are deserving of an honorable characterization of services. The applicant's contentions were noted; however, a determination on whether these contentions have merit cannot be made because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. It should be noted; the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. Based on the available record it appears 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s)/ Counsel: 10. BOARD DETERMINATION: Due to COVID-19, a telephonic personal appearance hearing was conducted at Arlington, VA on 23 March 2020, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBHI and PTSD), a prior period of honorable service, post-service accomplishments, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general under honorable conditions 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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20190011081 5