1. Applicant's Name: a. Application Date: 24 February 2020 b. Date Received: 3 March 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's request is based upon principles of clemency and equity. He was discharge for a civilian criminal matter that was unresolved at the time of his separation, yet the most prejudicial, untried facts of his criminal matter became a part of his separation proceedings. After years of efforts, the applicant's civilian conviction was overturned by an appeals court and, ultimately, a clean criminal record. He has since amassed an impressive post-service conduct evidence that, along with the serious equitable issues related to his administrative separation provide compelling justification to upgrade his discharge. The applicant's discharge is inequitable because it was influenced, in part, by highly inflammatory allegations that were yet to be tried in a court of law and ultimately never prosecuted after appellate courts reversed the convictions. Veterans Affairs documents confirm combat- related PTSD, not diagnosed properly at the time of discharge. Additional medical examinations indicate stress and anxiety that led to his poor decision-making process. The events leading to his discharge are directly attributable to service-connected mental health that was not available when decision was made to separate him. He has received an evaluation of 50 percent disability rating for service-connected PTSD. The applicant's overall quality of service warrants relief as a matter of equity. He has two combat tours and was slated for a third, but he was separated. The stress of the third upcoming combat deployment exacerbated an undiagnosed PTSD trigger. His NCOERs were positive with high ratings. He held two occupational specialties in infantry and military intelligence, earned numerous awards and decorations. His overall quality of service and accomplishments are deemed sufficiently mitigating to warrant an upgrade. It is especially compelling when his service is considered against totality of the circumstances including being absolved of all serious charges against him and now has a clean record. The applicant's exemplary post-service conduct warrants relief as a matter of equity and clemency. His character references support him for an upgrade as he significantly impacted upon and contributed to the veterans' community. He was selected twice to represent the University at the Student Veterans of American Leadership Institute, because he embodies such high character and strength as a leader. His exemplary post-service conduct are of consistent, sustained effort to demonstrate that his in-service misconduct was an aberration and not indicative of his overall character. He maintains consistent employment. He earned an undergraduate degree and working towards a graduate degree. He notably serves in a capacity that directly serves veterans navigating the VA system and higher education, and as a Veteran Resource Coordinator. He began a Master of Science Program at a university of business, and working toward a master's degree in Labor Relations and Human Resources. He is maintaining a 4.0 GPA. 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 50% 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 18 September 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 / Under Other Than Honorable Conditions b. Date of Discharge: 5 November 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 May 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 12 March 2010, the applicant used indecent language. On 14 March 2010, the applicant attempted to patronize a prostitute. (3) Recommended Characterization: an Under Other Than Honorable Conditions (4) Legal Consultation Date: 25 May 2010 (5) Administrative Separation Board: 8 September 2010, discharge with an Under Other Than Honorable Conditions characterization of service (6) Separation Decision Date / Characterization: 6 October 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 January 2008 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 122 c. Highest Grade Achieved / MOS / Total Service: E-6 / 35M1V, 5W Human Intelligence Collector and 11C1P, Indirect Fire Infantryman / 9 years, 4 months, 3 days d. Prior Service / Characterizations: RA (3 July 2001 to 26 October 2005) / HD RA (5 July 2005 to 17 January 2008) / HD e. Overseas Service / Combat Service: SWA / Iraq (15 February 2003 to 15 January 2004), (29 December 2007 to 5 April 2008) f. Awards and Decorations: JSCOM; ARCOM-2; AAM; AGCM-2; NDSM; ICM-3CS; GWOTEM; GWOTSM; NCOPDR-2; ASR; OSR; USA/USAF PU; CIB g. Performance Ratings: Three NCOERs rendered during period of service under current review: 11 September 2007 thru 30 June 2008, Fully Capable 1 July 2008 thru 31 October 2008, Among the Best 1 November 2008 thru 31 October 2009, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Counseling statement for pursuing and executing the applicant's separation from the Army. Report of Mental Status Evaluation, dated 6 April 2010, providing no diagnosis, psychiatrically cleared the applicant for any administration action deemed necessary by his command. Report of Proceedings by Board of Officers, dated 8 September 2010, with its summarized transcript of the board proceedings, reported the findings and recommendations of the board. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 27 April 2010, indicates the applicant noted behavioral health issues. Independent Medical Examination Report on [the Applicant], dated 11 August 2010, provides "DSM-IV Diagnoses" (at page 93 of separation file) and "Axis I" reflects an "Adjustment Reaction with mixed Anxiety and Depression." Applicant's documentary evidence: VA letter, dated 16 May 2018, reflects that the applicant was granted an evaluation of 50 percent for service-connection for PTSD (also claimed as anxiety and depression) (at page 106 of 170 pages). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 24 February 2020, with attorney-authored brief; ERB; four NCOERS; JSCOM certificate; two ARCOM and one AAM certificates with recommendations for awards; two AGCM Orders; seven certificates of achievements; seven award of badge orders; five Service School Academic Evaluation Reports; eight Diploma; seven course/training/program completion certificates; award orders; DD Form 214; administrative separation board hearing transcript, and findings and recommendations; separation file; two Counseling and Psychological Services letters, dated 5 August 2014 (pages 67-70 and 137-140 of 170 pages), and 20 May 2015 (pages 141 of 170); VA letter, dated 16 May 2018; Superior Court Final Disposition, dated 15 May 2015; article entitled "FBI task force cases in jeopardy" (page 110 of 170 pages), dated 26 March 2013, and new articles, dated 21 April 2015 (122), 9 October 2015 (123); case law (320 GA App. 397) and (295 Ga. 86, 757 S.E.2d 819); Petition for Discharge of Defendant, dated 15 May 2015; certificate of completion; US Department of Justice letter, dated 24 September 2016, with its attachments; Criminal History Record; character reference/supporting statement, dated 16 October 2019; Dean of Students letter, dated 9 October 2019; Director of Veterans Services letter, dated 20 December 2019; an additional character reference/supporting statements; and applicant resume with contact information/recommendations/character references. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that the applicant had significantly impacted upon and contributed to the veterans' community; he was selected twice to represent the University at the Student Veterans of American Leadership Institute, because he embodies such high character and strength as a leader; he maintains consistent employment; he earned an undergraduate degree and is working towards a graduate degree; he notably serves veterans, navigating the VA system and higher education; he began a Master of Science Program at a university of business, and working towards a master's degree in Labor Relations and Human Resources with a 4.0 GPA; and he continues to serve as a Veteran Resource Coordinator. 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 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. The applicant's available record of service, and 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, as a Soldier had the duty to support and abide by the Army's alcohol abuse policies. By the serious incident of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, and his post-service accomplishments, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 applicant's contentions regarding the events leading to his discharge were directly attributable to his service-connected mental health that involved an undiagnosed PTSD at the time of his discharge and that medical examinations indicate stress and anxiety have led him to his poor decision-making process, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14- 12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 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 18 September 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 AR20200002584 4