1. Applicant’s Name: a. Application Date: 14 December 2019 b. Date Received: 19 December 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 under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions) and a narrative reason change. The applicant seeks relief contending, in effect, that the applicant served in the US Army from 5 October 2000 to 17 February 2005 proudly and it was the greatest thing the applicant has ever done for over four years. The applicant was stationed in Graf Germany on 9/11; and on 9/12 the unit was supposed to start a Field Exercise called Victory Strike and instead they went live. It changed to a full deployment called Operation Victory Strike with live rounds, all night missions, and guard watch at 24-hour clips. The applicant came back and was different and during those times there was no such thing as PTSD. That was the beginning of the Iraqi War and the end of life as the applicant knew it. The applicant was scared to go get help because the applicant was afraid of being called “crazy” or being diagnosed with “personality disorder,” and stuck in a mental institution drugged up with medicine which would numb the applicant to the world. So, the applicant started self-medicating with cocaine and drinking. The applicant could not get a job because of the type of separation received so the applicant sold drugs to support the applicant’s habit and for medical care. The applicant was diagnosed with Asthma in the Army which medical records will confirm and even though the applicant’s conditions are service connected, because of the applicant’s discharge the applicant states not being able to get the benefits needed. The applicant served over four years during the beginning of the war on terrorism and because of a single offense the applicant was not afforded a medical exit exam nor any other benefit the applicant earned. The applicant believes this is the very definition of unfair or inequitable treatment. b. Board Type and Decision: In a records review conducted on 2 November 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 (Civil Conviction) / AR 635-200 / Chapter 14, Sec II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 17 February 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 November 2004 d. Basis for Separation: The applicant was informed of the following reasons: for being in civilian confinement after having pled guilty to the charges of burglary and aggravated assault. (1) Recommended Characterization: Under Other Than Honorable Conditions (2) Legal Consultation Date: On 18 November 2004, the applicant acknowledge that he would not appealing the conviction. (3) Administrative Separation Board: Memorandum for Record, dated 21 January 2005, indicates that on 18 November 2004, the applicant was notified that he had thirty days in which to contact trial counsel or to submit a waiver of the discharge. Thirty days had since expired since the notification and the applicant had neither contacted trial counsel nor had the applicant submitted a waiver. (4) Separation Decision Date / Characterization: 28 January 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 March 2004 / 3 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 4 years, 4 months, 13 days d. Prior Service / Characterizations: RA, 5 October 2000 to 10 March 2004 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Court documents from the Superior Court of Muscogee, County, Georgia, indicates the applicant had criminal offenses of aggravated assault, kidnapping, and burglary. The applicant was sentenced to 10 years on each count concurrent. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) Section II, Paragraph 14-5, prescribes conditions that subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, II, misconduct (civil conviction). 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 general (under honorable conditions) and a narrative reason change. The applicant’s Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The AMHRR indicates separation action was initiated against the applicant based on being in civilian confinement after having pled guilty to the charges of kidnapping, burglary, and aggravated assault. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been sentenced to confinement by civilian authorities of 10 years on each count concurrent. The applicant was separated under the provisions of Chapter 14, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Civil Conviction),” and the separation code is “JKB.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, in effect, having served in the US Army from 5 October 2000 to 17 February 2005, proudly and it was the greatest thing the applicant has ever done for over four years. The applicant was stationed in Graf Germany on 9/11; and on 9/12 the unit was supposed to start a Field Exercise called Victory Strike and instead they went live. It changed to a full deployment called Operation Victory Strike with live rounds, all night missions, and guard watch at 24-hour clips. The applicant came back and was different and during those times there was no such thing as PTSD. That was the beginning of the Iraqi War and the end of life as the applicant knew it. The applicant was scared to go get help because the applicant was afraid of being called “crazy” or being diagnosed with “personality disorder,” and stuck in a mental institution drugged up with medicine which would numb the applicant to the world. So, the applicant started self-medicating with cocaine and drinking. The applicant could not get a job because of the type of separation received so the applicant sold drugs to support the applicant’s habit and for medical care. The applicant was diagnosed with Asthma in the Army which medical records will confirm and even though the applicant’s conditions are service connected, because of the applicant’s discharge the applicant cannot get the benefits needed. The applicant served over four years during the beginning of the War on Terrorism and because of a single offense the applicant was not afforded a medical exit exam nor any other benefit the applicant earned. This is the very definition of unfair or inequitable treatment. The applicant’s contentions were noted; and the applicant is to be commended on in-service accomplishments; however, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s numerous incidents of misconduct adversely affected the quality of service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant also contends that after returning from deployment the applicant did not seek medical help because the applicant was afraid of being called “crazy” or being diagnosed with “personality disorder,” and stuck in a mental institution drugged up with medicine which numbs the applicant to the world. So, the applicant started self-medicating with cocaine and drinking. The applicant was diagnosed with Asthma in the Army which medical records will confirm. Even though the applicant conditions are service connected and because of the applicant discharge the applicant cannot get the benefits needed. It should be noted, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service at the time of discharge. 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. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: applicant self asserts suffering from mental health issues, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserts mental health issues on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating factors. Applicant's military and VA medical records are void of any BH-related notes. There is no evidence in the available information that the applicant reported BH symptoms or was diagnosed with a BH condition while on active duty. Accordingly, while Liberal Consideration was applied, there is no mitigation for the applicant’s misconduct. (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 the applicant’s asserted mental health issues outweighed the basis for applicant’s separation – civil conviction of aggravated assault, kidnapping, and burglary – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record but 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 pleading guilty to burglary and aggravated assault, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends suffering from Asthma and combat-related trauma which caused the applicant to self-medicate with cocaine and alcohol. The applicant also contends not being afforded an exit medical exam nor any other benefit, which is unfair and inequitable. The Board considered this contention and the applicant’s assertion of Asthma and combat related trauma, however the Board determined that there is insufficient evidence of a mitigating BH diagnosis in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. (3) The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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. (4) The applicant also contends that after returning from deployment the applicant did not seek medical help because for fear of being labeled and mistreated. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with possible combat-related trauma, 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 of burglary and aggravated assault is not an acceptable response to dealing with possible combat-related trauma, thus the applicant was properly and equitably discharged. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 there were no mitigating factors for the Board to consider. Since the applicant was discharged for civilian conviction for burglary and aggravated assault, the applicant’s Under Other Than Honorable Conditions characterization is proper and equitable. 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 AR20200002299 1