1. Applicant's Name: a. Application Date: 25 September 2019 b. Date Received: 25 September 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 conditions. The applicant seeks relief contending, in effect, he is requesting an upgrade of his discharge because while he served, he was a motivated Soldier. He was advanced in his work in garrison and the field. His strongest trait was definitely motivating others and PT. He says he received awards and early promotions and coins having been acknowledged for going above and beyond. He allowed his troubles at home to interfere with his work. He was immature and going through a divorce. He says this upgrade would help him and his family. He doesn't want his past issues to dictate his future and he believes everyone deserves a second chance. With this second chance, he plans to get a better job where his family won't have to live from paycheck to paycheck. He says his mistakes in the military stemmed from an immature mindset. The applicant says he always told the truth and took responsibility for his actions. He says he had blowups and was at his worst when his brother died and he didn't know. The applicant can now say that he's grown and matured and would like a second chance. In a records review conducted on 18 May 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 28 October 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 September 2016 (2) Basis for Separation: The applicant was informed of the following reasons: based on the event-oriented counseling's addressing misconduct on or about 16 May 2016, took his privately owned weapon from the company arms room; on or about 30 March 2015, was disrespectful toward a SGT, by yelling at her "Yes Sergeant," or words to that effect, and laughing; on 5 February 2015, was pulled over on post for going 44 MPH in a marked 25 MPH zone; and on or about 6 January 2014, made to a SFC, a false statement, "a PFC, and the applicant were only carpooling and he was using his shower after Physical Readiness Training" or words to that effect. Furthermore, on 10 March 2015, the applicant received a Company Grade Article 15, and was found guilty of one specification of failing to report to the appointed place of duty, one specification of disrespect toward a superior non-commissioned officer, two specifications of insubordinate conduct toward a non- commissioned officer, and one specification of being drunk and disorderly. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 12 September 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 6 October 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 February 2013 / 5 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10, Military Police / 3 years, 8 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Eight Developmental Counseling Forms, for various acts of misconduct. CG Article 15, dated 5 March 2015, for failing to go at the time prescribed to the appointed place of duty on 1 November 2014, for behaving disrespectfully toward a 1LT, by yelling and contemptuously turning from and leaving him while he was talking to him on 2 July 2014, being disrespectful in language and deportment toward a SGT, by interrupting him and then walking away from him while he was speaking to him on 2 July 2014, being disrespectful in language and deportment toward a SGT, by walking away from him and slamming the door shut while he was talking to him on 2 July 2014, and for being drunk and disorderly on 8 November 2014. The punishment consisted of a reduction to Private/E-2; forfeiture of $404.00 pay (suspended); and, extra duty for 7 days and restriction to the limits of the company area, dining/medical facility, and place of worship for 14 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 17 August 2016, reflects the applicant was diagnosed with problems of adjustment to life-cycle transitions. The applicant met medical retention requirements and 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. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; five third-party letters; a copy of his Certificate of Achievement; DD Form 214. 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), 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service. The Board will consider the applicants service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends an upgrade of the discharge will allow better employment opportunities. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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. Applicant has been diagnosed with the following potentially mitigating BH conditions: mild TBI, Adjustment Disorder, and Mild Cognitive Impairment. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnoses of Adjustment DO, mild TBI, Mild Cognitive Impairment were made in service. The VA has also service connected the applicant for Traumatic Brain Disease and Migraine Headaches. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a diagnosis, mild Traumatic Brain Injury, which mitigates some of his misconduct. As TBI is associated with difficulty with authority figures, there is a nexus between his TBI and his disrespectfulness toward an NCO. As there is an association between TBI and avoidant behavior, there is a nexus between his TBI and his failure to report to his place of duty. As there is a nexus between TBI and use of alcohol to self-medicate symptoms, there is a nexus between his TBI and his offense of being drunk and disorderly. Mild TBI does not mitigate the applicant's misconduct of taking his weapon from the company arms room, speeding, making a false official statement or exhibiting insubordinate conduct toward an NCO, given the fact that mild TBI does not affect one's ability to distinguish right from wrong and act in the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered 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 mild TBI, Adjustment Disorder, and Mild Cognitive Impairment completely outweighed the basis for applicant's separation for taking his privately owned weapon from the company arms room, insubordinate conduct and disrespect toward a non- commissioned officer, speeding on post, making a false statement, failing to report to the appointed place of duty, disrespect toward a superior non-commissioned officer, and being drunk and disorderly. b. Response to Contentions: (1) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there was insufficient evidence of in-service mitigating factors and the applicant had the ability to distinguish right from wrong and act in the right. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family 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 taking his weapon from the company arms room, speeding, making a false official statement or exhibiting insubordinate conduct toward an NCO is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends good service. The Board 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. By taking his weapon from the company arms room, speeding, making a false official statement or exhibiting insubordinate conduct toward an NCO, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 contentions 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 mild TBI, Adjustment Disorder, and Mild Cognitive Impairment did not excuse or mitigate the offenses of taking his weapon from the company arms room, speeding, making a false official statement or exhibiting insubordinate conduct toward an NCO. 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 AR20190015541 1