1. Applicant's Name: a. Application Date: 5 September 2019 b. Date Received: 26 September 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of the general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant requests Foreign Service time, ARCOM award and military records reflect service in Kuwait. The applicant seeks relief contending, in effect, is a United States Army combat veteran who proudly served for approximately two years. The applicant excelled in military career, receiving several awards recognizing achievements. The applicant's service record was exemplary prior to the minor violations that led to general discharge. The applicant's disciplinary actions did not involve drug use, alcohol use, or violence. The applicant states, discharge for violating the Uniform Code of Military Justice (UCMJ) Article 86, was inequitable because the Army disregarded mitigating factors, such as deteriorating mental state and the side-effects from prescribed medications. The applicant's charge of violating Article 91, UCMJ, was inequitable because the applicant could not form the requisite mental state of willful, contempt, or disrespect to a commanding officer. The applicant's charge of violating Article 92, UCMJ, was inequitable because the applicant was not capable of having knowledge to violate a lawful order when frantic mental state and impaired cognitive faculties inhibited the applicant from processing the order. The Army mishandled the applicant's treatment and, if enlisted today, would not have received a general discharge with the narrative reason for separation defined as "Misconduct." Counsel further details the contentions in an allied legal brief provided with the application. Following service, the applicant earned his Associate's degree in Computer and Information Security and is now employed by the State of Vermont. The applicant is now married, a father of two children, and continues to seek mental health and medical care. Despite the applicant's mischaracterized discharge, the applicant has strived to live a happy, healthy, and productive life. 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 no information regarding the applicant. JLV indicates that it the applicant is not registered with the VA. The applicant is not service- connected from the VA. The applicant was prescribed multiple psychotropic medications during the time period of misconduct. Given the fact that these medications, especially when taken together, can lead to sedation, they mitigate the offense of the applicant's FTR and more likely than not contributed to his offenses of failing to obey a lawful order and disrespect. In summary, the applicant has 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 19 August 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, the circumstances surrounding the discharge (i.e. in-service diagnosis and service-connected diagnosis), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 12 November 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 October 2004 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to report to PT formation and pre-manifest, disrespected a senior noncommissioned officer, and disobeyed a lawful order. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 October 2004 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 October 2004 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 May 2002 / 4 years b. Age at Enlistment / Education / GT Score: 20 / GED / 127 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31R1P, Multichannel Transmission Systems Operator - Maintainer / 2 years, 5 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 23 September 2004, for failing to go at the time prescribed to his appointed place of duty (8 September 2004); for disrespectful deportment towards 1SG D (13 September 2004); and, failing to obey a lawful order (13 September 2004). The punishment consisted of a reduction to E-1; forfeiture of $597 pay per month for two months; and, extra duty and restriction for 45 days. Several 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 27 September 2004, 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: Anxiety Disorder NOS. The applicant provided a copy of his post-service medical records, dated 15 January 2013, which reflect the applicant was diagnosed with Depression disorder NEC. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant earned his Associate's degree in Computer Information Security and is now employed by the State of Vermont. He is now married, a father of two children, and he continues to seek mental health and medical care. 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, paragraph 12c, misconduct (serious offense). 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 and a narrative reason change. The applicant requests his Foreign Service time, his ARCOM award and military records reflect his service in Kuwait. 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 requests Foreign Service time, his ARCOM award and military records reflect his service in Kuwait. However, the applicant's request do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ"." 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 his discharge is inequitable because it disregarded mitigating factors, such as his deteriorating mental state and the side-effects from his prescribed medications; he was not capable of having knowledge to violate a lawful order when his frantic mental state and impaired cognitive faculties inhibited him from processing the order; and, he could not form the requisite mental state of willful, contempt, or disrespect to a commanding officer. The applicant's service record contains documentation that supports a diagnosis of in service Anxiety Disoerder; 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 shows that on 27 Deptember 2004, 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 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. They all recognize his good conduct after leaving the Army; 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 19 August 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, the circumstances surrounding the discharge (i.e. in-service diagnosis and service-connected diagnosis), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), the separation code to JKN, and the reentry code to RE-3. 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 / RE-3 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 AR20190013390 1