1. Applicant’s Name: a. Application Date: 29 November 2019 b. Date Received: 29 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the commander informed the applicant if a medical evaluation board (MEB) was dropped the applicant would be allowed to change units to deploy; however, when the applicant dropped the MEB, the commander decided to discharge the applicant. 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 17 March 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 December 2009 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 19 June 2009 the applicant was convicted of Assault in the 3d degree in El Paso County Court, Colorado; on or about 10 September 2009, the applicant received a Field Grade Article 15, for disobeying a direct order issued by a commissioned officer, wrongfully and without authority wearing the 4ID unit patch on the right sleeve of the applicant’s ACU; and on divers occasions, failed to report to the appointed place of duty, between on or about 8 September 2009 and on or about 16 September 2009. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 4 December 2009 (5) Administrative Separation Board: The applicant unconditionally and voluntarily waived any consideration of the case by an administrative separation board even if separated with an under other than honorable conditions discharge. (6) Separation Decision Date / Characterization: 4 December 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 June 2007 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 2 years, 7 months, 21 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: FG Article 15, dated 10 September 2009, reflects the applicant failed to obey a lawful order and wrongfully and without authority wear upon the 4th Infantry Division Unit Patch on the right army sleeve of the applicant’s uniform. The punishment consisted of reduction to grade private first class/E-3, suspended, to be automatically remitted if not vacated before 9 March 2010; forfeiture of $876 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 9 March 2010; and extra duty and restriction for 45 days. The suspension of the punishment of reduction to E-3 and forfeiture of $876 pay per month for two months imposed on 10 September 2009, was vacated due to the applicant failure to go at the prescribed time to the appointed pace of duty on or about 16 September 2009. A Military Police Report, dated 21 February 2099, reflects the applicant was charged with Assault in the Third Degree; False Imprisonment; Domestic-Civilian Victim. A Military Police Report, dated 17 March 2009, reflects the applicant was charged with Domestic-Civilian Victim and Violating a Restraining Order. A Commander’s Report of Disciplinary or Administrative Action, dated 23 June 2009, reflects the applicant was convicted of Assault in the Third Degree. A Commander’s Report of Disciplinary or Administrative Action, dated 1 July 2009, reflects the applicant was convicted of Domestic-Civilian Victim and Violation of Restraining Order on 26 February 2009. Military Police Report, dated 23 July 2009, reflects the applicant was charged with Assault in the third degree. i. Lost Time / Mode of Return: Civilian Confinement x 36 days, 20 February 2009-21 February 2009, 3 March 2009-17 March 2009, 5 July 2009-23 July 2009. Personnel Action Forms, reflects the applicant’s duty status changed as follows: From “Present for Duty (PDY) to Civilian Confinement (CC),” effective date; 20 February 2009: From “CCA” to “PDY,” effective 21 February 2009; From “PDY” to “CC,” effective 3 March 2009. From “CCA” to “PDY,” effective 17 March 2009; From “PDY” to “CC,” effective 5 July 2009; and From “CCA” to “PDY,” effective 23 July 2009. j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation (MSE), dated 15 July 2009, reflects the applicant had a psychiatric illness or condition and it was recommended the applicant not be separated for Patterns of Misconduct, but be able to receive medical treatment and possibly be Medically Boarded from the Army. The applicant was psychiatrically cleared for any action deemed appropriate by the command. An MSE, dated 21 July 2009, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with Adjustment Disorder with mixed disturbance of emotions and conduct. A Chapter 14-12C Administrative Separation Checklist annotates the applicant was pending a MEB. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Partial Separation Packet, Medical Documents 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 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, states 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. 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’s Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The applicant contends the commander informed the applicant if a MEB was dropped the applicant would be allowed to change units to deploy; however, when the applicant dropped the MEB, the commander decided to discharge the applicant. 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: Adjustment Disorder, Anxiety Disorder NOS, Depressive Disorder NOS, Personality Disorder Antisocial traits, PTSD, TBI. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder, Anxiety Disorder NOS, Depressive Disorder NOS, Personality Disorder Antisocial traits, and PTSD; however, PTSD was removed as it was based on falsifying combat. The applicant was diagnosed with a Concussion based on a MVA. (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 valid diagnoses do not mitigate the basis for separation. Even in considering the service connected TBI, all documentation reflects intact cognitive processes. Moreover, although the applicant asserts a MEB, only dropping it at Command's request, the applicant had the related evaluations and found fit for duty. Further, the Board’s medical advisor invalidated the applicant’s PTSD/TBI diagnoses due to them being based off combat service, which it appears the applicant falsified. (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 the applicant’s Adjustment Disorder, Anxiety Disorder NOS, Depressive Disorder NOS, Personality Disorder Antisocial traits outweighed the basis for applicant’s separation – 3rd degree assault, disobeying a direct order issued by a commissioned officer, wrongfully and without authority wearing the 4ID unit patch on the right sleeve of the applicant’s ACU; and on divers occasions, failed to report to the appointed place of duty. b. Response to Contention(s): The applicant contends the commander informed the applicant if a MEB was dropped the applicant would be allowed to change units to deploy; however, when the applicant dropped the MEB, the commander decided to discharge the applicant. The Board determined that subsequent evaluations after the MEB was dropped concluded the applicant was fit for duty, thus the MEB would not have been necessary regardless of if it being dropped or not. In addition, the Board found evidence of falsified combat service by the applicant in order to obtain PTSD/TBI diagnoses by the VA. The Board concluded that the applicant was properly and equitably discharged. 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 Adjustment Disorder, Anxiety Disorder NOS, Depressive Disorder NOS, Personality Disorder Antisocial traits did not excuse or mitigate the offenses of 3rd degree assault, disobeying a direct order issued by a commissioned officer, wrongfully and without authority wearing the 4ID unit patch on the right sleeve of the applicant’s ACU; and on divers occasions, failed to report to the appointed place of duty nor the apparent fraudulent working of the VA system to get a PTSD and TBI diagnosis related to combat service the applicant did not have. 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 AR20200001644 1