1. Applicant's Name: a. Application Date: 26 July 2019 b. Date Received: 8 August 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, he has struggle with and continues to struggle from the effects of depression, post-traumatic stress disorder (PTSD) and lower back pain related to his deployment to Afghanistan. He was punished after disrespecting an abusive officer. His commander intended to punish him twice with an under other honorable conditions characterization of service. During his trial he was forced to admit his disabilities required greater attention and he requested to be discharged. He had never been in trouble during his career and has evidence of his prior honorable service. He was prevented from applying for a medical retirement and attending drills despite his attorney's intervention. In a records review conducted on 27 October 2021, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and prior period of honorable service. Therefore, the Board voted to recommend relief with issuance of a new NGB Form 22a, with an upgrade of the characterization of service to Honorable, the separation authority to NGR 600-200, paragraph 6-8a, the narrative reason for separation to Misconduct (Minor Infractions). The Board's recommendation was forwarded to the Chief, National Guard Bureau, Georgia Military Department, to the Adjutant General, State of Georgia, under the provisions of 10 USC § 1553, for final approval. 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: Acts or Pattern of Misconduct / NGR 600-200, Paragraph 6-35i(1) / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 November 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 February 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On multiple occasions the applicant was disrespectful to your superiors by walking out on counseling sessions. In addition on 23 March 2017, the applicant was disrespectful toward CPT J, a superior officer; the applicant assaulted CPT J by saying to him "I'll beat your ass," or words to that effect; the applicant assaulted CPT J by raising his hand and arm in a threatening manner to indicate he was going to strike him; the applicant assaulted CPT J by picking up a chair and attempting to throw it at him; the applicant disobeyed a lawful order given by CPT J to leave his office; the applicant was disrespectful to MSG K by saying to him "fuck you," or words to that effect; the applicant used provoking or reproachful words or gestures by repeatedly telling CPT J and MSG K "fuck you," or words to that effect; and the applicant used provoking or reproachful words or gestures by repeatedly telling CPT J and MSG K "I'll beat your ass," or words to that effect. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 4 November 2018, the Administrative Separation Board found the allegations of misconduct - Commission of a serious offense pertaining to the applicant was support by a preponderance of the evidence. The Board recommended the applicant be separated from the Georgia Army National Guard with a General (Under Honorable Conditions) characterization of service. (6) Separation Decision Date / Characterization: 30 November 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 November 2013 / 6 years (ARNG) b. Age at Enlistment / Education / GT Score: 40 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-6 / 74D, Chemical Operations Specialists / 19 years, 3 months, 10 days d. Prior Service / Characterizations: RA, 14 May 1986 - 13 May 1990 / HD RA, 31 January 1991 - 19 March 1991 / HD (Order to Active Duty)) RA, 4 December 2010 - 22 January 2012 / HD (Concurrent Service) RA, 10 September 2014 - 17 April 2017 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Afghanistan (21 January 2011 - 3 December 2011) f. Awards and Decorations: AAM-3, AGCM, NDSM-2, ACM-CS-2, GWORSM, ASR, OSR-2, AFRM-M, NATO Medal, ARCAM-3 g. Performance Ratings: 31 October 2016 - 10 June 2017 / Not Qualified 11 June 2017 - 10 June 2018 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: Orders 163-129, dated 12 June 2017, reflects the applicant was reduced in grade from Staff Sergeant (SSG)/E-6 to Sergeant (SGT)/E-5, effective 10 June 2017, due to misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a letter from the Department of Veteran Affairs, dated 26 July 2019, which reflects the applicant has a combined service-connected disability rating of 90 percent. This letter does not list the nature of the applicant's disabilities. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214, Letter from the Department of Veterans Affairs, Army National Guard Retirement Points History Statement, Document from the Defense Finance Accounting Service, Defense Finance and Accounting Service Military Leave and Earnings Statement, Orders 352-115, dated 18 December 2018, Email correspondence 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. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and, Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35i (1) defers to AR 135-178, chapter 12. e. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and, Command Sergeant Major Program. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-8a, prescribes an honorable characterization 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. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contend he has struggle with and continues to struggle from the effects of depression, PTSD and lower back pain related to his deployment to Afghanistan. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant contends he has never been in trouble during his career and has evidence of his prior honorable service. The Board considered the service accomplishments and the quality of service. The applicant contends he was prevented from applying for a medical retirement and attending drills despite his attorney's intervention. 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 VA has diagnosed the applicant with PTSD and Major Depressive Disorder, two potentially mitigating BH conditions. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at this finding based upon the VA has service connected the applicant for Mood Disorders (70%). Subsumed under this service connection are the BH diagnoses of PTSD and MDD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The opinion of the Agency Medical Advisor is that the applicant has two BH conditions, PTSD and MDD, which partially mitigate his misconduct. As there is an association between PTSD/MDD and oppositional behaviors, there is a nexus between these illnesses and his multiple incidents of disrespectfulness toward his superiors. However, PTSD and MDD do not mitigate the offense of assault. The documented assault was not characteristic of either PTSD or MDD. Specifically, the physical assault was not an impulsive or sudden event that occurred with no provocation; the act of assault did not suggest a re-enactment of applicant's prior traumatic event; applicant could speak coherently of the events prior to, during and after the assault. Accordingly, while Liberal Consideration was applied, the offense of assault was not mitigated or excused. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that BH diagnoses of PTSD/MDD are often associated with disrespectfulness toward his superiors. However, PTSD and MDD did not mitigate the offense of assault, as there is no nexus between these behaviors and the BH conditions listed. As a result, the ADRB applied liberal consideration and found that the non-mitigated offense of assault is still outweighed by PTSD and MDD. b. Response to Contention(s): (1) The applicant contend he has struggled with and continues to struggle from the effects of depression, PTSD and lower back pain related to his deployment to Afghanistan. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD and Major Depressive Disorder. (2) The applicant contends he has never been in trouble during his career and has evidence of his prior honorable service. The Board recognizes and appreciates the applicant's willingness to serve, and prior period of honorable service, and considered this contention during board proceedings. (3) The applicant contends he was prevented from applying for a medical retirement and attending drills despite his attorney's intervention. Eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. There is no evidence of missing drills in the basis for separation, but the Board appreciates the applicant's willingness to fulfill his obligations. c. The Board determined the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, period of honorable service and the circumstances surrounding the discharge based upon an in-service diagnosis of PTSD and MDD. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and Major Depressive Disorder mitigated the applicant's misconduct of disrespect toward superiors. While assault was not mitigated, the Board determined that the BH conditions outweighed it. Thus the prior characterization is no longer appropriate. This recommendation was forwarded to the NGB for approval. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. This recommendation was forwarded to the NGB for approval. (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 NGB Form 22: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions) d. Change RE Code to: No Change e. Change Authority to: NGB 635-200, paragraph 6-8a 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 AR20190013180 5