1. Applicant's Name: a. Application Date: 22 April 2020 b. Date Received: 12 May 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the discharge should be upgraded due to inequity. The applicant's mental health condition (service-connected PTSD) and service-connected TBI were mitigating factors in his misconduct, because they affected his capability to serve. Counsel states, the discharge should be upgraded on the basis of inequity because the applicant's service was honorable for more than five years and his post-service life has been honorable, exemplifying his quality of service. Counsel states the controlling standard for equity supports the conclusion that the ADRB must find: (1) the applicant suffered and continues to suffer from PTSD, (2) the PTSD existed during service, (3) that the PTSD materially contributed to the events and decisions which resulted in applicant's discharge, thus mitigating the misconduct, and that (4) his PTSD outweighs the single moment of poor judgment the applicant experienced throughout his more than five years of service. More importantly, in the spirit of the Wilkie Memorandum, counsel urges the ADRB to look at applicant through the frame of his whole life. Currently his exceptional military service is defined by a single mistake he had made after his marital life fell apart as a result of PTSD and the applicant's pursuit of a career in the Army. The Wilkie Memorandum instructs to "punish only to the extent necessary" and to "rehabilitate to the greatest extent possible." The applicant had been punished, he has been homeless and he has struggled after his dream of lifelong military service was shattered by a single mistake. In the face of great adversity-where many would have fallen to depression, alcoholism, and would have never gotten out of homelessness, the applicant persevered. The applicant paid by losing his dream in the Army, suffering PTSD from his rough, yet stellar service, and struggling through homelessness after the Army left him to fix himself. Counsel urges this ADRB "to favor second chances" and upgrade the applicant's discharge to honorable. Counsel further details the contentions in an allied legal brief provided with the application. 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 no diagnoses. The VA has diagnosed the applicant with PTSD. The applicant is 80% service connected, 70% for PTSD. 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 13 November 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 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 August 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 August 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 30 April 2011, he was arrested by Colorado Springs Police Department and charge with Domestic Violence and Assault against his wife M. D. outside of the Hatch Cover Bar, located in downtown Colorado Springs. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 15 August 2011, the applicant waived his rights to consult with a JAG officer. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 August 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 January 2006 / 3 years, 20 weeks b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-5 / 25S2P, SATCOM System Operator-Maintainer / 5 years, 5 months, 7 days / On 22 October 2010, the applicant voluntarily extended his 3 year enlistment by 26 months, giving him a new ETS of 10 October 2013. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Alaska, SWA / Iraq (1 October 2006 - 1 November 2007; 15 September 2008 - 1 February 2009) f. Awards and Decorations: JSAM, AAM-2, AGCM, NDSM, GWTOSM, ICM-3CS, NCOPDR, ASR, OSR-2, CAB g. Performance Ratings: 1 September 2010 - 22 August 2011 / Marginal h. Disciplinary Action(s) / Evidentiary Record: El Paso County court documents, dated 2 May 2011, reflects the applicant was arrested and charged with: Charge 1: Assault 3-know/reckless Cause Injury; Charge 2: Harassment- strike/shove/kick. The applicant plead guilty to Charge 1; and, Charge 2 was dismissed. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)," effective 1 May 2011; and, From "CCA" to "PDY," effective 11 July 2011. i. Lost Time / Mode of Return: 71 days (CCA, 1 May 2011 - 11 July 2011) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 11 August 2011, 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: Alcohol abuse. The applicant provided a copy of his VA disability rating decision, dated 2 September 2016, which reflects the applicant was rated 70 percent disability for PTSD to include depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief, with all listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has obtained his Commercial Driver's License, went through Yoga Teacher Training, is working with Comeback Yoga, a non-profit organization that offers free yoga classes and scholarships to Veterans and is a National Academy of Sports Medicine- certified personal trainer and a SilverSneakers certified professional. The applicant is also pursuing is Bachelor's Degree. 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'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. Counsel 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. Counsel contends the applicant was suffering from undiagnosed PTSD, which affected the applicant's behavior and led to his discharge. The applicant's service record contains documentation that supports a diagnosis of in service alcohol abuse; 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 11 August 2011, 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 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. Counsel 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. Counsel contends the applicant was having family issues that affected his behavior and ultimately caused him to be discharged. However, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Counsel contends the event that caused the applicant's discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. Counsel contends the applicant had good service which included two combat tours. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. 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 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 13 November 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 AR20200008674 6