1. Applicant's Name: a. Application Date: 24 August 2019 b. Date Received: 12 September 2019 c. Counsel: None 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 seeks relief contending, in effect, his chapter was not a proper 14-12(c), this was not serious misconduct, therefore the chapter is deficient because he was not notified of serious misconduct under the regulation. He was always willing to give a breathalyzer, but the officer did not have a breathalyzer. His charges were dropped except for the DUI because the officer had no substantial proof that he was guilty of the other three laws that he was accused of violating. Since his discharge he held a steady job, trying to improve and be the best man he can be for his family. He was undergoing behavioral health treatment for PTSD prior to being discharged which is still untreated. His alcohol abuse stemmed from his PTSD. He desires to receive VA benefits to attend school. He wants to rejoin the force as a chief officer. 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 Other Reactions to Severe Stress. The applicant 50% service connected for Somatization. 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 October 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 January 2019 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 28 November 2018 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he violated the Tennessee Implied Consent law by failing to submit to a chemical test, as requested by a Tennessee Police Officer, to determine the alcohol content of his blood. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 December 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 December 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 August 2015, 4 years b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 3 years, 5 months, 14 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: CG Article 15, dated 15 August 2018, for having knowledge of a lawful order issued by SGT T.G., to bring IOTV to 0630, 0930, 1300 and 1630 formations, an order which it was his duty to obey, did fail to obey the same by wrongfully not bringing his IOTV to aforementioned formation times (29 May 2018); reduction to PFC / E-3 (suspended), forfeiture of $478 pay (suspended) and extra duty for 14 days. An administrative General Officer Memorandum of Reprimand (GOMOR), dated 25 September 2018, for his reprehensible conduct of refusing to take a lawfully requested test to measure the alcohol content of his blood, in violation of the Tennessee implied consent law. On 1 February 2016, he was also arrested in Tennessee with a breath alcohol content of .127, while underage. It is totally unacceptable for one alcohol related driving offense, let alone two. Report of Mental Status Evaluation, dated 6 November 2018, relates the applicant in accordance with AR 40-501, met medical retention standards and was cleared from a behavioral health perspective for administrative actions. He denies any history of military sexual trauma. He did not require any additional referrals or evaluations. The applicant received several negative counseling statements for various acts of misconduct; monthly counseling, being flagged and notification pf pending separation action. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); three character / support statements; medical record, diagnosis history (12 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 documented 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 seeks relief contending, his chapter was not a proper 14-12(c), this was not serious misconduct, therefore the chapter is deficient because he was not notified of serious misconduct under the regulation. The record of evidence shows that the applicant was notified that separation action was initiated under the provisions of AR 635-200, Chapter 14-12c, for commission of a serious offense. The applicant further contends, he was always willing to give a breathalyzer, but the officer did not have a breathalyzer; and his charges were dropped except for the DUI because the officer had no substantial proof that he was guilty of the other three laws that he was accused of violating. The record of evidence further shows that the reason for his discharge was he violated the Tennessee Implied Consent law by failing to submit to a chemical test, as requested by a Tennessee Police Officer, to determine the alcohol content of his blood. The applicant also contends, since his discharge he held a steady job, trying to improve and be the best man he can be for his family. The applicant is to be commended for his effort. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. Lastly, the applicant contends, he was undergoing behavioral health treatment for PTSD prior to being discharged which is still untreated; and his alcohol abuse stemmed from his PTSD. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was being treated for PTSD and his alcohol abuse stemmed from his PTSD. The applicant desires to receive VA benefits to attend school; and he wants to rejoin the force as a chief officer. Eligibility for veteran's benefits to include educational benefits under the Post- 9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Soldiers being processed for separation are assigned reentry codes based on their 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 was no basis 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 third party statements provided with the application speak highly of the applicant. 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 14 October 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 / 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 AR20190013898 1