1. Applicant's Name: a. Application Date: 27 June 2019 b. Date Received: 3 July 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 and a narrative reason change. The applicant seeks relief contending, in effect, his unit in November 2004, began to bully and harass him. The bullying turned to threats and physical abuse. He was given counseling statements and out of fear for his life he signed them even though they were not true. On or about 21 January 2005, his chain of command zip tied him to a chair and beat him for 18 hours in the unit conference room. He states, they beat him with phone books, the butt end of rifles, punched him, slapped him, kicked him, and put an M9 pistol to the back of his head and pulled the trigger. He reported the assault while at the hospital and then a one-star general from the 82nd airborne division came to the hospital and told him to shut his mouth. The general told him no one was going to be punished as the Army already had enough bad press and his discharge was going to be expedited. The applicant states, no one was charged, and he was kicked out of the Army within three weeks. The very people who assaulted him and got away with it, were the same ones who recommended he receive a general discharge. As a result of their abuse, he struggles with chronic PTSD. The applicant states, he was denied Defense Trial Services during the process to chapter him out of the Army and was not allowed to meet with counsel. He states his discharge was unjust and unfair, and was just another way for his abusers to abuse him. At the time of his discharge, he had one year in service so he would like his updated DD Form 214 to reflect the rank of E-3, since that was the rank he had at the time of his discharge. In a records review conducted on 30 July 2021, and by a 3-2 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: Condition, Not a Disability / AR 635- 200, Chapter 5-17 / JFV / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 February 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: The recommendation from 82d Airborne Division Mental Health evaluation and his inability to rehabilitate. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: The applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 February 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 February 2004 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B1P, Infantryman / 1 year, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASM, GWTSM, NDSM g. Performance Ratings: NA h. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Disciplinary Action(s) / Evidentiary Record: Numerous Developmental Counseling Forms, for various acts of misconduct. j. Lost Time / Mode of Return: NA k. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 14 January 2005, 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 Service member does not have a severe mental disorder and is not considered mentally disordered. However, the service member manifests a long-standing disorder of character, behavior, and adaptability that is of such severity so as to preclude adequate military service. Although not currently at significant risk for suicide or homicide, due to these life­long patterns of maladaptive responses to routine personal and/or work-related stresses, the service member may become dangerous to him or others in the future. Report of Mental Status Evaluation, dated 26 January 2005, 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 diagnosis with adjustment disorder with mixed disturbance of emotions and conduct, partner relational problem and alcohol abuse. The applicant provided a copy of a VA disability rating decision, dated 9 February 2018, reflecting the applicant was rated 50 percent disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Board of Veteran's Appeals letter, Department of Veterans Affairs Rating Decision. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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), 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 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. A general (under honorable conditions) discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17 unless properly notified of the specific factors in the service that warrant such characterization. (5) Paragraph 5-17 specifically provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability, which interferes with assignment to or performance of duty and requires that the diagnosis be so severe that the Soldier's ability to function in the military environment is significantly impaired. 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 "JFV" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-17, Condition, Not a Disability. 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 request an upgrade to honorable and a narrative reason change. The issues and documents submitted with the application were carefully reviewed. The evidence of record shows the applicant, was evaluated by competent medical authority and determined the applicant had a Mood disorder and Antisocial Personality features. It was determined he should be discharged from the Army. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 26, separation code "LFV." The discharge packet confirms the separation authority approved the discharge by reason of: physical condition, not a disability. Soldiers processed for physical condition, not disability will be assigned an SPD Code of JFV and an RE Code of "3." The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 5, paragraph 5-17, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Physical Condition, Not a Disability," and the separation code is "JFV." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates the 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. Army Regulation 635-5 stipulates no deviation is authorized. There is no provision for any other reason to be entered under this Army Regulation 635-5. The applicant contends his DD Form 214 should reflect held the grade of E-3. The applicant's requested change to the DD Form 214 does not fall within this board's purview. 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 contends he was abused by his chain of command. The applicant contends he has PTSD and was diagnosed with an adjustment disorder with anxiety by the VA. The applicant's AMHRR contains documentation that supports a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct, partner relational problems, and alcohol abuse. The record shows the applicant underwent a mental status evaluation on 26 January 2005, which indicates the applicant was mentally responsible, with thought content as clear, and was able to recognize right from wrong. At the hospital, the applicant contends that he reported that he was assaulted during his military service and was subsequently informed by a one star general to shut his mouth; was denied counsel; and, was discharged unfairly. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The evidence in the AMHRR shows the applicant waived counsel. 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 reviewed DOD and VA medical records to reach this conclusion. The applicant held in-service diagnoses of Cyclothymia, Adjustment Disorder, and Antisocial personality features. Post-service, he holds a variety of diagnoses to include Antisocial Personality Disorder, Major Depressive Disorder, PTSD, Schizoaffective, and Unspecified Depressive Disorder. The applicant is service-connected for PTSD related to an in- service physical assault. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, Cyclothymia, and Antisocial personality features. Post-service, the applicant is service connected for an in-service physical assault resulting in PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The ADRB determined the applicant's in-service conditions of Adjustment Disorder, Cyclothymia, and Antisocial personality features did not excuse or mitigate the applicant's discharge basis. Specifically, the Board found no specific conduct as the underlying basis for the discharge to be excused or mitigated, but rather the applicant's mental condition at the time of discharge was incompatible with military service. (4) Does the condition or experience outweigh the discharge? No. The Board's application of liberal consideration concurred with the Board's medical advisor that the applicant's medical conditions of Adjustment Disorder, Cyclothymia, and Antisocial personality features did not outweigh the discharge basis. b. Response to Contentions: (1) The applicant contends he was abused by his chain of command. The Board, after liberally considering this contention, concluded the applicant's characterization and reason for discharge should not be upgraded. (2) The applicant contends he has PTSD. The Board carefully considered this contention, however, even after applying liberal consideration, the ADRB determined that the evidence supported the characterization and reason for the applicant's discharge. (3) The applicant contends that while at the hospital, he reported his assault and was subsequently informed by a one-star general to shut his mouth, and then was denied counsel, and, ultimately was discharged unfairly. The ADRB carefully considered these contentions, and sympathizes with the applicant's recollections of his experiences at the hospital. The Board also considered applicant's contention that he was denied counsel, but weighed that against applicant's separation file that includes waiver of rights to counsel signed by the applicant. Even after applying liberal consideration of these contentions, the ADRB found the applicant's discharge characterization and reason for discharge are appropriate. c. The Board denied the request upon finding the separation was both proper and equitable. The majority of 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. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 regarding applicant's experiences with his chain of command along with his medical records did not support a change to the applicant's discharge characterization. The Board concluded that 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 AR20190010804 1