1. Applicant's Name: a. Application Date: 28 May 2019 b. Date Received: 30 May 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, that he was suffering from an undiagnosed mental conditions and he is requesting an upgrade to his disability so he can become a better person and father by using his post 9/11 GI Bill to attend college and be an example for his children. He was self-medicating with alcohol and dealing with sleep issues which led to lateness and behavior issues. He wishes he could have gotten help earlier and retired a proud husband, father, and Soldier. In a records review conducted on 13 October 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 26 December 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 December 2007 (2) Basis for Separation: The applicant was informed of the following reasons: for receiving a Field Grade article 15 for wrongful appropriation of a privately owned vehicle, a violation of Article 121, UCMJ, indecent assault on another member of the US Armed Forces while off post, being drunk and disorderly on post, and assault on post. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 December 2007 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 17 December 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 April 2004 / 6 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-3 / 35M10, Human Intelligence Collector Specialist / 3 years, 8 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 16 August 2006, indicates the applicant was the subject of investigation for assault, being drunk and disorderly, and drinking underage (on post). Military Police Report, dated 22 June 2006, indicates the applicant was the subject of investigation for indecent assault (off post). Military Police Report, dated 23 January 2007, indicates the applicant was the subject of investigation for larceny of a privately owned vehicle and wrongful damaging of a private property (on post). Evidence in the record indicates prior to the separation action under review; on 2 August 2007, the applicant was notified of action to separation him for commission of a serious offense for having received a Field Grade Article 15 for wrongful appropriation of a privately owned vehicle, a violation of Article 121, UCMJ. The commander recommended that the applicant receive an under other than honorable conditions discharge. The intermediated commander recommended the applicant be separated with a general (under honorable conditions) discharge. On 21 August 2007 it was recommended that the applicant be separated from the service and that an under other than honorable discharge certificate, with corresponding characterization of service, be issued. On 12 September 2007, the recommendation to separate the applicant IAW AR 635- 200, Chapter 14, paragraph 14-12c, was referred to an Administrative Separation Board. On 5 December 2007 (the separation action under review), another separation packet was initiated on the applicant. FG Article 15, dated 20 April 2007, for wrongfully appropriating a motor vehicle, to wit: a Silver Ford Ranger, of a value of approximately $6,000.00, the property of PFC J.W.M. The punishment consisted of reduction to E-2 (suspended), extra duty for 45 days, and an oral reprimand. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 11 May 2007, indicates the applicant was diagnosed with an Axis I for occupational problems. It was noted that the applicant was evaluated at the Fort Hood Resilience and Reconstruction Center for a mental status evaluation pursuant to AR 635-200 Chapter 14-12. The applicant was released to garrison duty without limitations. No cognitive or psychiatric limitations were identified that would limit his ability to distinguish right from wrong or render him unable to anticipate the consequences of his actions. The applicant was psychologically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter from the Department of Veterans Affairs, dated 28 May 2019, which indicates the applicant was awarded 70 percent service connected disability for bipolar disorder with psychotic features, claimed as manic depression, paranoid. 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) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (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. (7) 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. (8) 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. e. 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, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is 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 requests an upgrade to honorable. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records indicates that separation action was initiated against the applicant for receiving a Field Grade article 15 for wrongful appropriation of a privately owned vehicle, a violation of Article 121, UCMJ, indecent assault on another member of the US Armed Forces while off post, being drunk and disorderly on post, and assault on post. The applicant seeks relief contending that he was suffering from an undiagnosed mental conditions and he is requesting an upgrade to his disability so he can become a better person and father by using his post 9/11 GI Bill to attend college and be an example for his children. He was self-medicating with alcohol and dealing with sleep issues which led to lateness and behavior issues. He wishes he could have gotten help earlier and retired a proud husband, father, and Soldier. The applicant's contentions were noted as well as the independent documents submitted by the applicant awarding him 70 percent service connected disability; however, the Report of Mental Status Evaluation, dated 11 May 2007, indicates the applicant was diagnosed with an Axis I for occupational problems. It was noted that the applicant was evaluated at the Fort Hood Resilience and Reconstruction Center for a mental status evaluation pursuant to AR 635-200 Chapter 14-12. The applicant was released to garrison duty without limitations. No cognitive or psychiatric limitations were identified that would limit his ability to distinguish right from wrong or render him unable to anticipate the consequences of his actions. The applicant was psychologically cleared for any administrative action deemed appropriated by his command. The applicant expressed his desire for an upgrade of his discharge for the purpose of becoming a better person and father by using his post 9/11 GI Bill to attend college and be an example for his children. 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. 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's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records. The applicant held in-service diagnoses of Adjustment Disorder and Depression. Post-service, he is service connected for Bipolar Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder and Depression. While the applicant is post-service connected for Bipolar Disorder, the VA backdates the diagnosis to 2010, three years' post-discharge. Accordingly, it is unlikely the applicant's Bipolar Disorder existed in- service influencing misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, the applicant's basis for separation is not mitigated due to the seriousness of the offenses of indecent assault and larceny of a vehicle. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses of wrongful appropriation of a privately owned vehicle, a violation of Article 121, UCMJ, indecent assault on another member of the US Armed Forces while off post, being drunk and disorderly on post, and assault on post outweighed the applicant's BH diagnosis of Adjustment Disorder and Depression and post-service connection of Bipolar Disorder. b. The applicant seeks relief contending that he was suffering from an undiagnosed mental conditions and he is requesting an upgrade to his disability so he can become a better person and father by using his post 9/11 GI Bill to attend college and be an example for his children. While liberal consideration was applied, the in-service documentation is insufficient to determine whether or not the applicant had related symptoms in-service influencing his misconduct. Moreover, the VA only backdated the diagnosis to 2010; three years after discharge. While liberal consideration was applied, the applicant's basis for separation is not mitigated at this time. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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 applicant's BH diagnoses of Adjustment Disorder and Depression and post-service connection of Bipolar Disorder did not mitigate the offenses of wrongful appropriation of a privately owned vehicle, a violation of Article 121, UCMJ, indecent assault on another member of the US Armed Forces while off post, being drunk and disorderly on post, and assault on post. The applicant did not supply sufficient independent corroborating evidence to support contentions, 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 AR20190007685 1