1. Applicant’s Name: a. Application Date: 30 October 2019 b. Date Received: 12 November 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: 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, the discharge should be upgrade to general (under honorable conditions) because in the summer of 2011, the applicant was screened for medical, legal, and other areas to determine if the applicant was fit to be deployed. The applicant claimed to be red flagged in two areas, legal and psychological. It was determined by a psychologist that the applicant was not fit for deployment, according to the applicant. The applicant was to contact a civilian psychologist and obtain a copy of the applicant psychological records. The psychologist from Fort McCoy called the applicant’s unit and spoke with the applicant’s team leader who assured the psychologist that the applicant was a good Soldier, and the applicant psychological health was good. Due to the team leader’s action, the psychologist never called the applicant for a follow up. Due to the team leader’s action, the applicant was discharged prematurely, which surely would not have happened if the applicant’s civilian psychological records would have been released. The applicant believes documents submitted with the application will clearly show the applicant’s mental health condition prior to being discharged and a civil commitment from a judge due to the applicant’s mental health, the applicant has been suffering for a very long time. b. Board Type and Decision: In a records review conducted on 7 September 2022, 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: Conviction by Criminal Court / Chapter 6, paragraph 6-35i(2), NGR 600-200 / NA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 27 July 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 August 2012 (2) Basis for Separation: The applicant was informed of the following reasons: the commander under the provisions of AR 135-178, Chapter 12 & NGR 600-200, Chapter 6, paragraph 6-35i(2), initiated action to separate the applicant as a result of his conviction by a civil court, consequently, the applicant was prohibited from having possession of either a firearm or ammunition making the applicant a non-deployable asset. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 31 August 2012 the applicant waived the right to consult with appointed counsel for consultation or civilian counsel at the applicant own expense. (5) Administrative Separation Board: On 7 May 2013, an Administrative Separation Board was appointed to hear the “Misconduct-Civilian Conviction” case of the applicant, pursuant to AR 15-6, AR 135-178, Chapter 12, and NGR 600-200, Chapter 6. On 18 May 2013, the Administrative Separation Board, found the applicant to be unqualified for further military service and recommended separation with an Under Other Than Honorable characterization of service with a reduction to PVT. (6) Separation Decision Date / Characterization: 28 June 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 November 2008 / 8 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 4 years, 8 months, 15 days d. Prior Service / Characterizations: ARNG, 13 November 2008 to 6 June 2009 / NA ADT, 7 June 2009 to 24 July 2009 / NIF ARNG, 25 July 2009 to 21 June 2010 / NA ADT, 22 June 2010 to 8 October 2010 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Wisconsin Circuit Court Access court documents which indicates the applicant was convicted for Armed Robbery, Bail Jumping- Felony, and Criminal Damage to Property. The applicant was sentence to 10 years in a State Prison and 12 years Extended Supervision. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Medical documents submitted by the applicant dated 20 April 2012, refers to the applicant having been diagnosed with an Axis I for Mood Disorder, NOS, Post Traumatic Stress Disorder, History of Attention Deficit/Hyperactivity Disorder, Mixed Substance Abuse, Rule out Dependence, in early remission, in a controlled environment. Medical documents submitted by the applicant dated 22 April 2012, refers to the applicant having been diagnosed with an Axis I for Depressive Disorder, NOS vs Adjustment Disorder with depressed mood; Polysubstance Abuse including marijuana, cocaine, ecstasy, heroin, acid, etc., victim of abuse, ADHD per history. The applicant was also diagnosed with an Axis II for Personality Disorder, NOS with borderline and antisocial features. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; State of Wisconsin Circuit Court, Taylor County court documents; medical documents from (I.J.D., MD) and (J.S.D., MD), and Wisconsin Forensic Unit. 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 based on 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, 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. (3) Paragraph 6-8b, prescribes if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the Soldier’s conduct or performance of duty outweighs positive aspects of the Soldier’s military record. (4) Paragraph 6-8c, prescribes service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. The separation authority will direct reduction in grade to PV1 per AR 600-8-19, chapter 10 when the Soldier is discharge under other than honorable conditions. (5) Paragraph 6-35 prescribes for the separation/discharge from State ARNG and/or Reserve of the Army and the reasons, applicability, and codes for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both. These reasons may be used for separation from the State ARNG only. (6) Paragraph 6-35i(2), prescribes if the sole basis for discharge is conviction of a criminal offense, counseling and rehabilitative efforts are not required. RE 3 or 4. LC:CK 8. SUMMARY 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 ARMY Military Human Resource Record (AMHRR) indicates separation action was initiated against the applicant because of his conviction by a civil court, consequently, the applicant was prohibited from having possession of either a firearm or ammunition making the applicant a non-deployable asset. The applicant seeks relief contending that the discharge should be upgrade to general (under honorable conditions) because in the summer of 2011, the applicant was screened for medical, legal, and other areas to determine if the applicant was fit to be deployed. The applicant was red flagged in two areas, legal and psychological. It was determined by a psychologist that the applicant was not fit for deployment. The applicant was to contact a civilian psychologist and obtain a copy of the applicant’s psychological records. The psychologist from Fort McCoy called the applicant’s unit and spoke with the applicant’s team leader who assured the psychologist that the applicant was a good Soldier, and the applicant psychological health was good. Due to the team leaders action the psychologist never called the applicant for a follow up with the psychologist. Due to the team leaders action the applicant was discharged prematurely from the contract, which surely would have happened if the applicant civilian psychological records would have been released. The applicant believes documents submitted with the application will clearly show the applicant mental health condition prior to being discharge and a civil commitment from a judge due to the applicant mental health, the applicant has been suffering from for a very long time. The applicant contentions were noted, to include the independent medical documents submitted with the application. Medical documents submitted by the applicant dated 20 April 2012, refers to the applicant having been diagnosed with an Axis I for Mood Disorder, NOS, Post Traumatic Stress Disorder, History of Attention Deficit/Hyperactivity Disorder, Mixed Substance Abuse, Rule out Dependence, in early remission, in a controlled environment. Further, the Medical documents submitted, 22 April 2012, refers to the applicant having been diagnosed with an Axis I for Depressive Disorder, NOS vs Adjustment Disorder with depressed mood; Polysubstance Abuse including marijuana, cocaine, ecstasy, heroin, acid, etc., victim of abuse, ADHD per history. The applicant was also diagnosed with an Axis II for Personality Disorder, NOS with borderline and antisocial features. However, it should also be noted; the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: PTSD, Mood Disorder, Adjustment Disorder, Substance Disorder, and Borderline and Antisocial Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes. While there are no records to determine if the applicant had conditions prior to the arrest and multiple evaluations, the applicant asserts having pre-existing difficulties that persisted in service is accepted. Both the applicant and providers concur the applicant had depression and substance abuse prior to and in-service. Moreover, a Personality Disorder originates in adolescence and, as such, was also present in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant's likely depression, substance use, and personality disorder in-service does not equate to being unfit for service. Supporting this is the applicant's submitted evaluations that note symptoms were treatable and the applicant had mental capacity to stand trial. The applicant was functioning, eligible for treatment, and had not reached the medical retention determination point. In terms of the misconduct, the applicant's Personality Disorder provides context, but not mitigation as the applicant is still able to make conscious choices understanding the consequences. Additionally, the misconduct is not a progression or sequela of the other diagnoses. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): The applicant seeks relief contending that the discharge should be upgraded because the applicant was red flagged in two areas, legal and psychological, and should not have been deployed. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board determined that the applicant’s numerous diagnoses were not mitigating for the misconduct due to the serious and violent nature. The applicant was determined to be functional and symptoms were treatable, not requiring discharge at that time. Even considering the numerous BH diagnoses, the applicant’s violent, planned, and intentional crimes for which the applicant was convicted in a civilian court would not be excused or mitigated. The Board considered the totality of the applicant’s service record but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. The applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 of all the evidence before the Board, the applicant’s PTSD, Mood Disorder, Adjustment Disorder, Substance Disorder, and Borderline and Antisocial Personality Disorder did not excuse or mitigate the offenses of Armed Robbery, Bail Jumping- Felony, and Criminal Damage to Property. 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, as 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 NGB Form 22a: 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 AR20190014584 1