1. Applicant's Name: a. Application Date: 19 September 2019 b. Date Received: 23 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 was diagnosed with major depression and stress disorder that played a part in the discharge. The applicant would also like to continue his education. In a records review conducted on 18 May 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, combat service, and the circumstances surrounding the discharge (Adjustment Disorder and Major Depressive Disorder diagnoses). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. 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: 8 April 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 March 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 26 January 2015, failed to obey a direct order from a SSG, to "At Ease", was disrespectful in language to a SSG, to wit: "I don't give a fuck, call whoever you want", "Get the fuck out of my face", "What are you going to do?", or words to that effect, on 16 December 2014, applicant failed to follow a direct order from a1SG, to change for remedial physical training, on 4 December 2014, the applicant failed to follow a direct order from a SFC, to bring his IOTV, Kevlar, eye-pro, and gloves to training and on diverse occasions between on or about 26 November 2014 and 25 February 2015, he failed to report to appointed place of duty. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 18 March 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 30 March 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 October 2011 / 4 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 3 years, 5 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (22 December 2012 - 16 September 2013) f. Awards and Decorations: ACM-CS, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Nine Developmental Counseling Forms, for various acts of misconduct. Summarized Record of Proceedings Under Article 15, dated 26 February 2014, for failing to go to appointed place of duty on or about 6 January 2014, 7 January 2014, 27 January 2014 and 7 February 2014. The punishment consisted 14 days of extra duty and restriction. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 6 February 2015, the examining medical physician noted in the comments section: Cough when had flu, back pain after deployment, stands too long foot pain, pain and acid after eating meals at times, chest pain with cough, borderline high blood pressure, stressed, stutter at times, insomnia, counseled for depression, depression with suicidal thought, admitted to 5-N for 6 days, emergency room for suicidal intention, diagnosed adjustment disorder. Was on no medications. Report of Medical Examination, dated 6 February 2015, the examining medical physician noted in the comments section: Back pain, GERD and Stress/Adjustment Disorder. Report of Mental Status Evaluation, 3 March 2015, reflects the applicant was diagnosed with adjustment disorder. The applicant was also screened for PTSD and TBI and tested positive for PTSD. He was referred for a comprehensive PTSD evaluation which indicated his symptoms report was not related to any traumatic events but to work-related stressors. Criterion A for PTSD was not met. The applicant completed a TBI screening which was negative for issues related to potential TBI. From a behavioral health perspective, the applicant meets the medical fitness standards for retention per AR 40-501, 3-31 to 3-37 as there is no indication of a boardable behavioral health disorder. The applicant could understand the difference between right and wrong and could participate in administrative proceedings. The applicant provided a copy of a VA disability rating decision, dated 1 July 2017, reflecting the applicant was rated 80 percent disability for one or more service connected disabilities, however, there is no diagnosis listed. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Department of Veterans Affairs Summary of Benefits. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. (7) 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 he was diagnosed with major depression and stress disorder which affected his behavior and ultimately caused the discharge. The applicant's AMHRR contains documentation that supports a diagnosis of in-service depression and suicidal thought. The record shows the applicant underwent a mental status evaluation (MSE) on 3 March 2015, which indicated the applicant was diagnosed with adjustment disorder and tested positive for PTSD but was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does 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. 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: Adjustment Disorder; Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnosis of Adjustment DO was made while on active duty. Applicant is 70% service connected by the VA for MDD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, MDD. Records indicate that the applicant's depression and irritability symptoms worsened significantly after he returned from deployment, most likely due to a post- traumatic depressive condition. As there is an association between MDD, increased irritability and oppositional behaviors, there is a nexus between his diagnosis of MDD and his multiple instances of disrespectfulness and failure to follow orders. As there is an association between MDD and avoidant behaviors, there is a nexus between the applicant's diagnosis of MDD and his failures to report. (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. As a result, the ADRB applied liberal consideration and found that the applicant's MDD completely outweighed the failure to follow a direct order from a noncommissioned officer (twice), use of disrespectful language towards a noncommissioned officer, to bring his IOTV, Kevlar, eye-pro, and gloves to training and on diverse occasions, and failure to report to his appointed place of duty basis for separation. b. Response to Contentions: (1) The applicant contends he was diagnosed with major depression and stress disorder which affected his behavior and ultimately caused the discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service due to MDD mitigating the applicant's misconduct. (2) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. c. The Board determined the discharge is inequitable based on the applicant's length of service, combat service, and the circumstances surrounding the discharge (Adjustment Disorder and Major Depressive Disorder diagnoses). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had MDD which mitigated the applicant's misconduct of failure to follow a direct order from a noncommissioned officer (twice), use of disrespectful language towards a noncommissioned officer, to bring his IOTV, Kevlar, eye-pro, and gloves to training and on diverse occasions, and failure to report to his appointed place of duty. Thus the prior characterization is no longer appropriate. (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. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 MDD - Major Depressive Disorder 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 AR20200000030 1