1. Applicant's Name: a. Application Date: 18 February 2019 b. Date Received: 4 March 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, current laws prevent him from being able to use veteran benefits. The applicant states he has a 70-percent service-connected disability rating. In a records review conducted on 30 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 (Civil Conviction) / AR 635-200 / Chapter 14, Sec II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 29 September 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted in civil court for threat to bomb and possession of an incinerator device. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 8 September 2010 (5) Administrative Separation Board: The applicant voluntarily and unconditionally waived consideration of his case by an Administrative Separation Board. (6) Separation Decision Date / Characterization: 16 September 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 October 2008 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B, Combat Engineer / 1 year, 2 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Report of Mental Status Evaluation, dated 12 February 2010, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in the evaluation. Military Police Report dated, 4 June 2009, reflects the applicant was charged with possession of marijuana and prescription pills. On 22 January 2010, the Superior Court of Washington for Pierce County found the applicant guilty by plea of threat to bomb or injure property and unlawful possession of an incendiary device. The applicant was ordered to be confined for 10 months and $1200.00 in fines. Memorandum, Subject: CID Report of investigation, dated 17 August 2010, reflect an investigation determined the applicant committed the offense of wrongful use of a controlled substance when he consumed ecstasy prior to a unit urinalysis on 16 March 2010. The memo reflects the applicant received non-judicial under the provisions of Article 15, UCMJ and was reduced to PV2; order to forfeit $811.00 for two months, which was suspended for 45 days; and extra duty for 45 days. A Report of Mental Status Evaluation, dated 30 August 2010, reflects the applicant had the mental capacity to understand and participate in proceedings and was mentally responsible. There was no clinical evidence that the applicant lacked the capacity to appreciate the nature and the quality and the wrongfulness of the behavior that led to the separation. Seven Personnel Action forms reflects the applicant's duty status changed as follows: From "Present for Duty (PDY) to Confined by Civilian Authorities "CCA" effective 17 July 2009; From "CCA" to "PDY" effective 4 February 2010; From "PDA" to Absent Without Leave (AWOL) effective 9 June 2010; From "AWOL" to "Dropped from Rolls" (DFR) effective 9 July 2010; From "DFR" to "PDY" effective 30 July 2010 From "PDY" to "AWOL" effective 9 August 2010; and From "AWOL" to "PDY" effective 12 August 2010 i. Lost Time / Mode of Return: Confinement X 1, AWOL X 2 for a total of 256 days, 16 July 2009 - 3 February 2010 / Applicant returned, 9 June 2010 - 29 July 2010 / Applicant returned 9 August 2010 - 11 August 2010 / Applicant Returned j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 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 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) 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. 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's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends current laws prevent him from being able to use benefits. However, 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. The applicant states he has a 70-percent service-connected disability rating. The record reflects that the applicant underwent a mental evaluation on 12 February 2010, which reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in the evaluation. Further, a Report of Mental Status Evaluation, dated 30 August 2010, reflects the applicant had the mental capacity to understand and participate in proceedings and was mentally responsible. There was no clinical evidence that the applicant lacked the capacity to appreciate the nature and the quality and the wrongfulness of the behavior that led to the separation. 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 medical records. In-service, the applicant was initially thought to have psychosis. However, after inconsistencies, the applicant had two extensive evaluations determining Malingering and Antisocial Personality Disorder. Post-service, he is service connected for Psychosis; however, the exam is void. The VA providers have not diagnosed psychosis, rather Antisocial Personality. (2) Did the condition exist or experience occur during military service? Yes. The applicant's Antisocial Personality Disorder was diagnosed in-service with misconduct and diagnosis continuing post-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. Documentation at the time of the event does not support the applicant was psychotic when he planned out, purchased supplies, and built the explosive devices. Psychosis precludes such careful planning and execution of a plan. Moreover, he was not psychotic when he made the threat to use the devices while intoxicated at a party with other Soldiers. Lastly, the Board considered applicant's claim that some of the basis for the discharge was related to a suicide attempt. The ADRB determined the applicant's Antisocial Personality Disorder more likely than not explains the misconduct, and this is not a psychiatric condition rendering an individual incapable. Accordingly, while liberal consideration was applied, the Board concluded that the evidence did not support that any applicant medical condition would excuse or mitigate the misconduct leading to the applicant's discharge. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Agency Medical Advisor that the applicant's claimed medical conditions and experiences do not outweigh the applicant's purchase of supplies for and construction of explosive devices as a basis for discharge. b. Response to Contentions: (1) The applicant contends current laws prevent him from being able to use benefits. However, 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. (2) The applicant states he has a 70-percent service-connected disability rating. The ADRB recognizes the VA's disability rating, but the Board concluded that the evidence of the disability does not support a conclusion that the applicant lacked the capacity to appreciate the nature, quality, and wrongfulness of the behavior that led to the separation. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. Further, the ADRB found that the applicant's current Under other-than-honorable-conditions discharge is proper, as it may be issued for misconduct that constitute a significant departure from the conduct expected of Soldiers in the Army. 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, despite applying liberal consideration, the evidence does not support a conclusion that there were any medical conditions that would mitigate the possession, creation, and possession of a bomb and incinerator device, and 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. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority 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 N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry 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 AR20190006179 1