1. Applicant's Name: a. Application Date: 1 December 2018 b. Date Received: 14 December 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, that during his time since getting out of the military, he has made significant changes in his life. He has earned four college degrees; an associate of arts, associate of science in respiratory therapy, bachelor of science in health science, and MBA in healthcare management. He has not gotten into any trouble at all. He has also been able to hold multiple jobs while in school to provide for his family. At the time of his application he was enrolled in a doctorate of business administration and health sciences program, on pace to be completed in two years. According to his DD Form 214, he was put out on a Chapter 14-12b, he contends he was not counseled for this chapter, he was counseled on a Chapter 14-12c which is a different chapter. He asks that discharge be upgraded because he has made significant changes in his life, and was counseled and discharged for the wrong chapter. According to Army Regulation (AR) 635-200, dated 6 June 2005, a Soldier must be counseled on the chapter that they're being put out on. Although he was counseled for one chapter but chaptered out on another, he takes full responsibility for his actions. He asks that the board please take these things into consideration and upgrade his discharge to honorable. In a records review conducted on 07 May 2021, and by a 4-1 vote, the Board determined the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision (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 / General (Under Honorable Conditions) b. Date of Discharge: 24 July 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 November 2008 (2) Basis for Separation: The applicant was informed of the following reasons: for having demonstrated patterns of misconduct by being found guilty of driving while intoxicated in the Community of Saint Robert Missouri, for that offense he also received a General Memorandum of Reprimand from the Commanding General of Fort Leonard Wood to be filled in his Official Military Personnel File (OMPF); In June of 2008 a 15-6 investigation found him guilty of adultery. During investigation by the MP it revealed that he had a history of misconduct and had been allegedly charged with two counts of simple assault consummated with a battery, adultery, driving under the influence and operating a USAREUR plated vehicle on a revoked license. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF; however, the separation authority's approval memorandum makes reference to the applicant having had a Board at one time. (6) Separation Decision Date / Characterization: On 7 July 2008, the separation authority concurred with the board's recommendation and directed that the applicant be separated UP AR 635-200, Chapter 14, Paragraph 14-12b (Pattern of Misconduct) with his discharge characterized as general (under honorable conditions). It was noted that in making his decision, he only considered the applicant misconduct during his current enlistment period to wit: DUI, adultery, and assault charges. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 December 2005 / 5 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-5 / 68W20, Health Care Specialist / 14 years, 4 months, 10 days d. Prior Service / Characterizations: USAR, 15 March 1995 to 30 July 1996 / NA RA, 31 July 1996 to 8 December 1998 / HD RA, 9 December 1998 to 6 September 2001 / HD RA, 7 September 2001 to 21 December 2005 / HD e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM-2, AGCM-3, NDSM-2, GWOTSM, NOPDR-2, ASR, OSR g. Performance Ratings: April 2005 to March 2006, Fully Capable 1 April 2006 to 31 March 2007, Among The Best 1 April 2007 to 31 March 2008, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Waynesville Police Department Report, indicating the applicant was the subject of driving while intoxicated and careless driving by going 30 MPH over the posted speed limit. General Officer Memorandum of Reprimand, dated 24 July 2008 for driving while intoxicated with a blood alcohol content of .113 g/ml on 22 June 2008. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; counseling statements dated 16 July 2008; certificates for Master of Business Administration, Bachelor of Science in Health Science - Respiratory Therapy, Associate of Science Respiratory Therapy, and Associated of Arts; and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since his discharge he has received four different degrees. 3. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) 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. (5) 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. (6) 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, paragraph 12b, misconduct (pattern). 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." 4. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends that during the time since getting out of the military, he has made significant changes in his life. He has earned four college degrees; an associate of arts, associate of science in respiratory therapy, bachelor of science in health science, and MBA in healthcare management. He has not gotten into any trouble at all. He has also been able to hold multiple jobs while in school to provide for his family. At the time of his application he was enrolled in a doctorate of business administration and health sciences program, on pace to be completed in two years. The applicant contends he contends he was not counseled for this chapter; he was counseled on a Chapter 14-12c which is a different chapter. The applicant contends he takes full responsibility for his actions. 5. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (YES) VA medical records indicate that the applicant is 90% service connected, 30% for Anxiety Disorder. (2) Did the condition exist or experience occur during military service? (YES) The VA has connected the applicant's diagnosis of Anxiety Disorder to his military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (PARTIALLY) The ADRB, after applying liberal consideration, determined that the applicant's diagnosis of Anxiety Disorder is mitigating for the applicant's DUI. Because there is a relationship between anxiety and use of sedative-type substances to self-medicate, the Board found a nexus between his Anxiety disorder and the arrest for DUI. However, despite applying liberal consideration, the Board did not find the applicant's diagnosis of Anxiety Disorder mitigating for the charge of adultery, assault, or driving on a revoked license. Anxiety Disorder does not prevent an individual from understanding the difference between right and wrong, nor does it impair impulse control. (4) Does the condition or experience outweigh the discharge? (NO) Despite applying liberal consideration, the ADRB found the preponderance of misconduct leading to the applicant's separation is not outweighed by the Anxiety Disorder. The Board, under advice from the Board's Medical Advisor, a voting member, found that the applicant was able to distinguish right from wrong and control his impulses despite his diagnosis of Anxiety Disorder. The Board found the Anxiety Disorder did not outweigh the discharge because of the level and severity of misconduct - adultery, assault, and driving with a revoked license - that resulted in his discharge with a general (under honorable conditions) characterization. b. The ADRB carefully considered the applicant's post service accomplishments and remorse. However, 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 character of the applicant's discharge is commensurate with his overall service record. c. The contention of being counseled for a different chapter was also carefully considered. The Board concluded misconduct including DUI, adultery, assault, and driving on a revoked license did, indeed, form a pattern of misconduct. Even after applying liberal consideration and mitigating the DUI, the ADRB decided the three remaining charges still formed a pattern of misconduct warranting a general (under honorable conditions) discharge characterization. d. The ADRB determined that the applicant's characterization of service was equitable based on lacking a condition which mitigates or outweighs a majority of the misconduct leading to the discharge. 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. e. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because adultery, assault, and driving on a revoked license is significant misconduct, and renders the applicant's overall service less than fully honorable. As such, the ADRB found a General (Under Honorable Conditions) discharge appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance. (2) The board voted not to change the reason because it is proper, equitable and appropriate to the misconduct. (3) Because the characterization and reason were not changed, the SPD/RE code will not change. 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 - Veter ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190000233