1. Applicant's Name: a. Application Date: 31 July 2019 b. Date Received: 1 October 2019 c. Counsel: 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, there was an original notification of a pending separation action over a year (16 March 2017) and believes the applicant was basically given the run-around and put on the back burner for that year. Then, the applicant was notified of a board with just over 30 days' notice and the board was held in the applicant's absence even though the applicant made it clear of wanting to attend that board. IAW AR 135-178, para 3-4b, the command is surpassed to make a reasonable effort to make personal contact with the Soldier and ensure they receive the notification. MAJ M. sent the applicant an email notification via the applicant's e-mail account. The applicant had a personal cell phone number and a civilian email address on file with the command given the fact the applicant was a Reservist, and it was widely known Reservists don't always have easy access to their military account. It would have been reasonable for the command to reach out to the applicant via the cell phone or personal email account when the applicant did not reply to the original e-mail notification. b. Board Type and Decision: In a records review conducted on 19 October 2022, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, and for the timing circumstances surrounding the discharge. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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 / AR 135-178 / Chapter 12-1c / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 17 May 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 March 2017 (2) Basis for Separation: The applicant was informed of the following reasons: for having been convicted by civil court of felony assault causing bodily injury (Chapter 12-2) under El Paso County Texas, case number 2014D05515 and under Chapter 12-1c, commission of a serious offense on 28 October 2016, in which the applicant was issued a lawful order by LTC M. The order was to report to a command directed mental health evaluation. The applicant had knowledge of that order, and without cause failed to comply with that order, which showed a pattern of misconduct. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The notification letter indicated that the separation action was being suspended for 45 days to give the applicant an opportunity to exercise the right to representation at the administrative board by civilian counsel at the applicant's own expense and at no expense to the government, and the right to present written statements on the applicant's own behalf. Any statement or supporting documents the applicant desired to submit on behalf of the applicant must be received by the commander within 30 calendar days after the applicant received the memorandum, unless the applicant requested and received an extension for good cause shown. (5) Administrative Separation Board: Partial document submitted by the applicant indicates the Administrative Separation Board, having carefully considered the evidence before it, found the allegation of misconduct, Chapter 11-1c Commission of a Serious Offense, in the notification of proposed separation were supported by a preponderance of the evidence finds did warrant separation with respect to the applicant; that the allegations of misconduct, Chapter 11-1b (Pattern of Misconduct) in the notification of proposed separation was supported by a preponderance of the evidence, did warrant separation with respect to the applicant; and the allegation of misconduct, Chapter 11-2, Conviction by Civil Court, in the notification of proposed separation was supported by a preponderance of the evidence and warrant separation with respect to the applicant. In review of the findings, the board recommended that the applicant be separated from the United States Army with an Under Other Than Honorable characterization of service. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 June 2000 / 8 years (Documents extending the applicant's period of enlistment were not found in the available record). b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-7 / 71L10 Administrative Specialist / 17 years, 10 months, 21 days d. Prior Service / Characterizations: USAR, 26 June 2000 to 7 August 2000 / NA ADT, 8 August 2000 to 23 November 2000 / UNC USAR, 24 November 2000 to 9 February 2003 / NA OAD, 10 February 2003 to 21 May 2003 / HD (Concurrent Service) e. Overseas Service / Combat Service: NIF f. Awards and Decorations: ARCOM, AAM, NDSM, AFRM-M Device, ASR g. Performance Ratings: 3 April 2012 to 11 October 2012, Among the Best 12 October 2012 to 11 October 2013, Fully Capable 11 October 2013 to 10 October 2014, Fully Capable 11 October 2015 to 9 October 2016, Met Standard h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Letter submitted by the applicant with the application, from the El Paso Behavioral Health System (Psychiatric Evaluation), indicates the applicant had a past psychiatric history with PTSD secondary to war trauma in Iraq and Afghanistan, ADHD, severe depression, and severe anxiety. It was also noted that the applicant was diagnosed with an Axis I for Major Depressive Disorder, severe, recurrent without psychosis, Anxiety Disorder, not otherwise specified, and Bipolar Disorder. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Form's 293; self-authored letters; medical documents; partial separation packet; NCOER's; character letters. 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 prescribes 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 of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a 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. (2) Paragraph 2-9b, prescribes, if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 12 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 12-1c, prescribes for the separation for the commission of a serious military or civilian offense if the specific circumstances of the offense warrant discharge and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. (6) Paragraph 12-8 states 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. 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 available AMHRR of service, the issues and documents submitted with the application were carefully reviewed. The AMHRR is void of the specific facts and circumstances concerning the events which led to the applicant's discharge from the United States Army Reserve. The applicant AMHRR record does contain a properly constituted discharge order: Orders 18-131-00060, dated 11 May 2018. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of under other than honorable conditions. The applicant seeks relief contending, in effect, there was an original notification of a pending separation action over a year (16 March 2017) and believes the applicant was basically given the run-around and put on the back burner for that year. Then, the applicant was notified of a board with just over 30 days' notice and the board was held in the applicant's absence even though the applicant made it clear of wanting to attend that board. IAW AR 135-178, para 3-4b, the command is surpassed to make a reason effort to make personal contact with the Soldier and ensure they receive the notification. Although MAJ M. sent the applicant an email notification via the applicant's government e-mail account, the applicant had a personal cell phone number and a civilian email address on file with the command, and given the fact the applicant was a Reservist, it was widely known Reservists don't always have easy access to their military account. It would have been reasonable for the command to reach out to the applicant via the cell phone or personal email account when the applicant did not reply to MAJ M.'s original e-mail notification. The applicant's contention was noted; however, it is unknown if these contentions have merit because the facts and circumstances leading to the discharge are not contained in the service record. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be the responsibility of the applicant to meet the burden of proof since the discharge packet is not available in the official record. 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 civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Bipolar Disorder, ADHD, Depression, Anxiety, Major Depressive Disorder (MDD), Generalized Anxiety Disorder (GAD), Mood Disorder, and combat related PTSD. (2) Did the condition exist, or experience occur during military service? Yes. The applicant submitted documents listing diagnoses of Bipolar Disorder, ADHD, Depression, Anxiety, MDD, GAD, and Mood Disorder occurring while in the Reserves. Additionally, paper profiles, PHAs, and related documents indicate the applicant reported diagnoses and related PTSD treatment to Army providers starting in 2009. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that although the applicant asserts mental health impacted the misconduct, and provides one opinion supporting this contention, records are void of a court-ordered sanity evaluation or similar suggestive of concern for mental capacity and responsibility. Moreover, the applicant was not hospitalized at the time of the event suggesting the applicant was not in an active mental health crisis at the time of the felony assault to the extent of being unaware of actions and consequences. Regarding disobeying an order to undergo a CDMHE, there is no indication there was a behavioral health reason for not attending the appointment. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor that the available evidence did not support a conclusion that the applicant's Bipolar Disorder, ADHD, Depression, Anxiety, MDD, GAD, Mood Disorder, and combat related PTSD outweighed the applicant's civilian conviction for felony assault. b. Response to Contentions: (1) The applicant seeks relief contending being originally notified of a pending separation action for over a year (16 March 2017) and believes was given the run-around and put on the back burner for that year. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's length and quality of service, and for the timing circumstances surrounding the discharge. (2) In accordance with AR 135-178, para 3-4b, the command is supposed to make a "reasonable effort" to make personal contact with the Soldier and ensure they receive the notification, and the applicant had a personal cell phone number and a civilian email address on file with the command which was not used by the command. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's length and quality of service, and for the timing circumstances surrounding the discharge. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, and for the timing circumstances surrounding the discharge. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General, Under Honorable Conditions because of the applicant's length and quality of service and the timing matters surrounding the discharge were inequitable. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code for the applicant's misconduct of having been convicted by civil court of felony assault causing bodily injury, 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 Separation Order: Yes b. Change Characterization to: General, Under honorable conditions c. 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 AR20190014707 1