1. Applicant's Name: a. Application Date: 26 January 2019 b. Date Received: 1 February 2019 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, an un-waived legal error clearly and affirmatively injured his substantial rights, the Non-judicial punishment was erroneous as a matter of law, the punishment was severe, excessive and disproportionate and no prerequisite actions of counseling, retraining and rehabilitation were conducted prior to the initiation of separation actions. The applicant requests restoration of rank to E-7, correction to the collection of overpayment debt in the amount of $5,242.22 (AR 15-185 dated 31 March 2006, Chapter 3). The applicant requests that the following corrections are made on the basis of injustice: Issue Certificate of Honorable Discharge from the Federally Recognized Army National Guard Transferred to the United States Army Retired Reserves, NGB Form 55B. Correct National Guard Report of Separation, NG Form 22; Blocks 23- 26 and final NCOER. In a records review conducted on 21 July 2021, and by a 5-0 vote, 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: Misconduct / NGR 600-200 / Chapter 6 / Paragraph 6-35i(1) / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 November 2017 c. Separation Facts: No, applicant submitted partial separation documents. (1) Date of Notification of Intent to Separate: 21 September 2016 (2) Basis for Separation: The applicant was informed of the following reasons for the discharge; The applicant failed to include non-duty days during consecutive periods of leave and was gone from his duty station during periods when he was not on leave; The applicant attempted to get an altered Counterdrug Performance Evaluation signed; The applicant attempted to hide his actions by making false statements; The applicant falsified his attendance records at the Coweta County Crime Suppression Unit; The applicant lied about his whereabouts to the GaNG CDTF and the CCCSU; The applicant was AWOL from his duties at the CCCSU between 1/2 and 3/4 of the days he was scheduled to work; The applicant's poor attendance and his poor excuses became a common joke at the CCCSU. In doing so, the applicant violated the Army Leave Policy (AR 600-8-10), was consistently AWOL, willfully disobeyed lawful orders, acted disrespectfully toward senior commissioned officers, made and attempted to make false official statements, was derelict in his duties and conducted himself in a manner that was prejudicial to good order and discipline and brought discredit upon the GaNG CDTF, the GAARNG, and the Army with the civilian law enforcement community. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 October 2016 (5) Administrative Separation Board: The applicant requested a hearing before an administrative separation Board. The applicant was notified to appear before an administrative separation board. On 6 August 2017, the board convened. The administrative separation board proceedings are not contained in the AMHRR. (6) Separation Decision Date / Characterization: 20 November 2017, the separation authority approved the Board's recommendation directed the applicant's discharge with a General (Under Honorable Conditions) characterization of service. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 August 2013 / 6-year extension / 17 August 2012 b. Age at Enlistment / Education / GT Score: 39 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-7 / 31B40, Military Police / 11B40, Infantryman / 23 years, 25 days d. Prior Service / Characterizations: USAR, 21 October 1992 to 11 January 1993 / NA RA, 12 January 1993 to 9 May 1996 / HD ARNG, 10 May 1996 to 22 January 1997 / HD RA, 23 January 1997 to 5 December 1997 / HD USARCG, 6 December 1997 to 20 October 2000 / NA Break in Service ARNG, 5 August 2002 to 14 March 2003 / NA AD, 15 March 2003 to 11 March 2004 / HD ARNG, 12 March 2004 to 26 January 2005 / AGR, 17 January to 13 January 2010 / NA AD, 14 January 2010 to 8 March 2011 / HD AGR, 9 March 2011 to 3 August 2013 / NA e. Overseas Service / Combat Service: Panama / SWA Kuwait / Iraq, 27 April 2003 to 30 January 2004 / Afghanistan, 19 March 2010 to 31 December 2010 f. Awards and Decorations: MSM, ARCOM, AAM-5, NDSM-2, ACM, ICM, GWOTSM, AFRM-2"M" DEV, NOPDR, ASR, OSR-3, NATO MDL, CAB, EIB, GADECCM, SOR, MESM g. Performance Ratings: 13 June 2013 to 12 June 2015, Fully Capable 13 June 2015 to 11 June 2016, Exceeded Standard 12 June 2016 to 24 October 2016, Did Not Meet Standard h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 25 October 2016, for violation of a lawful general regulation, by failing to include non-duty days during consecutive periods of leave around (1 December 2015 through 30 January 2016); reduction to SSG / E-6. The applicant's AMHRR reflects he received an administrative General Officer Memorandum of Reprimand (GOMOR), dated 20 December 2016, for inadvertently violating leave policy by not including weekend and holidays in his leave request. The GOMOR is not contained in the available AMHRR. The applicant received several negative counseling statements for various acts of misconduct. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); Exhibit A, Counseling Statements; Exhibit B, Sworn Statement, Response to IG Action Request; Exhibit C, Informal AR 15-6 Investigation; Exhibit D, Non-Judicial Punishment (NJP), Rebuttal to NJP; Exhibit E, GOMOR, Rebuttal to GOMOR; Exhibit F, Orders of Reduction, Revocation, Erroneous Discharge, Amendment 1 to Erroneous Discharge Order, Amendment 2 to Erroneous Discharge Order and Collection of Overpayment Debt; Exhibit G, 20 Year-Letter and RPAM; Exhibit H, Request for Conditional Waiver to Retire and Administrative Separation Board (ASB) Notification; Exhibit I, ASB Transcript (on Disc); Erroneous NGB Form 22 and NCOER; Exhibit J, Erroneous NGB Form 22 and NCOER; and Exhibit K, E-mail Correspondence (on Disc). The disc mentioned by the applicant was not submitted with the application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. 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 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7, prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. e. National Guard Regulation (NGR) 600-200 and Army Regulation (AR) 135-91 govern procedures covering enlisted personnel management of the Army National Guard. Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard. (1) Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard. (2) Paragraph 6-35i(1)of that regulation stipulates that individuals can be separated for acts or patterns of misconduct under the UCMJ, State Military Code or similar laws. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant seeks relief contending, in effect, an un-waived legal error clearly and affirmatively injured his substantial rights. The applicant did not specify the nature of the unwaived legal error. The applicant requests restoration of rank to E-7. The applicant was reduced by reason of non- judicial punishment for violation of the Uniform Code of Military Justice. The applicant requests correction to the collection of overpayment debt in the amount of $5,242.22 (AR 15-185 dated 31 March 2006, Chapter 3); and issue Certificate of Honorable Discharge from the Federally Recognized Army National Guard Transferred to the United States Army Retired Reserves, NGB Form 55B. The applicant's requests do not fall within the purview of the ADRB. 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 requests that the following corrections are made on the basis of injustice: Correct National Guard Report of Separation, NG Form 22; Blocks 23- 26 and final NCOER. 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 sufficient evidence to support the contention that the NGB Form 22 is inaccurate. Further, correction of the applicant's final NCOER is not within the purview of the ADRB. The applicant may apply to the Army Special Review Board regarding the matter if he believes an error exist. The applicant contends the non-judicial punishment was erroneous as a matter of law; and the punishment was severe, excessive and disproportionate. The available AMHRR does not contain sufficient information and the applicant did not provide compelling information his non- judicial punishment was erroneous, severe, excessive and disproportionate. The applicant alleges no prerequisite actions of counseling, retraining and rehabilitation were conducted prior to the initiation of separation actions. The available AMHRR reflects the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. The third party statements provided with the application speak highly of the applicant. 9. 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. The Board arrived at this finding based upon the medical advisor's review of DOD and VA records. The applicant holds a post-service connected PTSD diagnosis with treatment diagnoses of Adjustment Disorder and Major Depressive Disorder. (2) Did the condition exist or experience occur during military service? Yes. The VA has connected the applicant's PTSD with his service, although the specific source of the trauma is unknown. However, given the applicant's long service, the ADRB accepted that the PTSD occurred during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant obtained the rank of Sergeant First Class over the course of more than 20 years of service. Despite applying liberal consideration, the ADRB determined that an NCO with this amount of experience was deliberate and intentional in his efforts to avoid duty, disobeying orders, violating leave policy, making false official statements, and conducting himself in a manner that was prejudicial to good order and discipline. The applicant's actions were premeditated and well thought out, and since PTSD manifests itself through impulsive actions, none of the applicant's misconduct is excused or mitigated by this diagnosis. Further, PTSD does not prevent an individual from understanding the difference between right and wrong, and as a senior NCO, the applicant understood the actions were wrong. (4) Does the condition or experience outweigh the discharge? No. Despite applying liberal consideration, the ADRB found that the applicant, a senior NCO, knew and clearly understood the actions leading to discharge were wrong. Further, they were deliberate and planned, contrary to impulsive, unplanned actions that might be taken by an individual diagnosed with PTSD. b. Response to Contentions: (1) The applicant seeks relief contending, in effect, an un-waived legal error clearly and affirmatively injured his substantial rights. The applicant did not specify the nature of the unwaived legal error and the board was unable to determine the veracity of this contention. (2) The applicant requests restoration of rank to E-7. The applicant's request does not fall within the purview of the ADRB. 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. (3) The applicant requests correction to the collection of overpayment debt in the amount of $5,242.22 (AR 15-185 dated 31 March 2006, Chapter 3); and issue Certificate of Honorable Discharge from the Federally Recognized Army National Guard Transferred to the United States Army Retired Reserves, NGB Form 55B. The applicant's requests do not fall within the purview of the ADRB. 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. (4) Correct National Guard Report of Separation, NG Form 22; Blocks 23- 26 and final NCOER. 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 sufficient evidence to support the contention that the NGB Form 22 is inaccurate. (5) Further, correction of the applicant's final NCOER is not within the purview of the ADRB. The applicant may apply to the Army Special Review Board regarding the matter if he believes an error exist. (6) The applicant contends the non-judicial punishment was erroneous as a matter of law; and the punishment was severe, excessive and disproportionate. The available AMHRR does not contain sufficient information and the applicant has not demonstrated by a preponderance of evidence his non-judicial punishment was erroneous, severe, excessive and disproportionate. (7) The applicant alleges no prerequisite actions of counseling, retraining and rehabilitation were conducted prior to the initiation of separation actions. The available AMHRR reflects the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. (8) The third party statements provided with the application speak highly of the applicant. These statements were taken into consideration, but the individuals writing in support were not in the position of command to understand the full circumstances surrounding the discharge. c. The Board denied the request upon finding the separation was both proper and equitable. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The board voted not to change the applicant's characterization of service because the supplied and available evidence does not warrant an upgrade. The available documentation in relation to the PTSD diagnosis, BOI findings, numerous AWOL, disobedience toward lawful orders, falsification of documents, disrespect, dereliction of duties, and general misconduct are not outweighed by the applicant's length of service and do not warrant a discharge upgrade. (2) The board voted to not change the reason for discharge for the reasons noted above, and determined that the current reason was proper and equitable. (3) Because the characterization and reason were not changed, the SPD/RE codes 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 AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190002831 1