1. Applicant’s Name: a. Application Date: 25 September 2019 b. Date Received: 7 October 2019 c. Counsel: Yes 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 conditions. The applicant through counsel seeks relief contending, in effect, the applicant’s main reason for joining the military was because of being a teen parent. The applicant states after enlisting, the applicant was offered a few jobs and ended up choosing 13F10, Fire Support Specialist. While in Airborne school, the applicant states receiving a shoulder injury and only had 5 jumps and due to this shoulder injury, received a 30-day profile that ended up being several 3 month profiles. The applicant indicated understanding the need to get surgery, but later found out that was unnecessary. The applicant further states the surgeon said they could start the medical (med) board process since the applicant could not perform any of the duties related to the job. The applicant had chronic dislocation, meaning the shoulder would pop out if moved the wrong way. The applicant states never got the med board option and the unit despised the applicant due to being on profile so they put the applicant on gate guard. Once the profile expired, the applicant was directed to jump again. The applicant refused because of the injury and ended up accepting punishment under the provisions of Article 15, UCMJ. The applicant states still trying to get a med board but then began to be investigated for adultery and that put everything on hold. The applicant was discharged 10 days from 3-year time in service mark. In a records review conducted on 24 June 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 December 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2017 (2) Basis for Separation: The applicant was informed of the following reasons: For having an adulterous relationship with T., a spouse married to a Soldier in the applicant’s same Battery, a fact known to the applicant at the time, between on or about 1 March 2017 and to on or about 30 June 2017, and the applicant obstructed justice by endeavoring to impeded an investigation by altering the statement of a witness to an investigating officer, and on 30 June 2017, violated a no contact order by CPT C, by contacting T. multiple times after on or about 22 June 2017. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: Waived / 19 October 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 3 November 2017 / General (Under Honorable Conditions). The separation approving authority determined the applicant’s medical conditions was not the direct substantial contributing cause of the conduct that led to the recommendation of an administrative separation. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 December 2014 / 4 years, 24 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13F10, Fire Support Specialist / 2 years, 11 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Developmental Counseling Forms, for various acts of misconduct. CG Article 15, dated 30 November 2016, for wrongfully treating with contempt SSG D., by saying to the SSG “I am not jumping” and “I’ll be a jump refusal,” or words to that effect and for being derelict in the performance of those duties in that the applicant negligently failed to sign in from leave that ended on 13 July 2016. The punishment consisted of a reduction to E-2; forfeiture of $7 pay per month for one month (suspend 60 of the forfeiture for the number of months selected for a period of (blank) days; and, extra duty and restriction for 14 days. Memorandum for Record, Appointment as an AR 15-6 Investigating Officer, dated 26 June 2017, shows the applicant was under investigation for an alleged adulterous relationship involving the applicant and T., the spouse of SPC T., a Soldier in the same Battery as the applicant. Memorandum for Record, Findings & Recommendations of AR 15-6 Investigation, dated 7 July 2017, shows the applicant had an extramarital relationship with T., the spouse of SPC T., a Soldier in the same Battery as the applicant. Report of Mental Status Evaluation, dated 7 September 2017, 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. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Personal Affidavit; Copy of Applicant Interview from Law Firm; copies of military personnel records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he is currently a full time father. 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) 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. (5) 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. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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. 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 contends the discharge was procedurally defective, unfair then and unfair now. The applicant states the unit despised the applicant due to the applicant’s profile status. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being injured while in Airborne School and the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant’s DD Form 214 was corrected to reflect the correct rank which the applicant was discharged with from E-4 to E-2, and effective date of paygrade from 29 May 2017 to 6 December 2016. The applicant’s DD Form 214 shows being discharged under the provisions of AR 635-200, Chapter 14-12c on 18 December 2017, however the AMHRR shows orders# BG-008-1012, dated 8 January 2020, for deployment to Kuwait on 3 January 2020, in support of Operation Inherent Resolve and there is no documentation in the applicant’s record showing reenlistment. 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: Major Depressive Disorder with an additional diagnosis of Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. A service- connection assumes symptoms were 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 misconduct is not a sequela or progression or anxiety or depression. Moreover, the actions require conscious planning over time with multiple steps taken and attempts at evasion; cognitive abilities were intact. (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, a voting member, that the available evidence did not support a conclusion that any of the applicant’s medical conditions of Major Depressive Disorder with an additional diagnosis of Anxiety Disorder completely outweighed the basis for applicant’s separation – intentional adultery, obstruction of justice, and violating a no contact order. b. Response to Contention(s): (1) The applicant contends the discharge was procedurally defective, unfair then and unfair now. The applicant states the unit despised the applicant due to the applicant’s profile status. The Board considered this contention non-persuasive during its deliberations. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with unit issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s misconduct is not an acceptable response, thus the applicant was properly and equitably discharged. (2) The applicant contends being injured while in Airborne School and the discharge should have been for medical reasons. The Board determined that the applicant’s 20% service- connection indicates the applicant still met retentions standards. Further, medical evaluation boards are halted and superseded when a service member commits misconduct. c. The Board determined that 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 Major Depressive Disorder with an additional diagnosis of Anxiety Disorder did not mitigate the offenses of intentional adultery, obstruction of justice, and violating a no contact order. 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 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 AR20190015263 1