1. Applicant’s Name: a. Application Date: 15 November 2019 b. Date Received: 5 February 2020 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. The applicant requests an upgrade to honorable conditions. The applicant seeks relief contending, in effect, the underlying cause of the misconduct that caused the discharge was an untreated mental health disability. The applicant’s inability to get mental health treatment was the underlying cause of the chain of events that eventually led to the applicant’s discharge. Secondly, the applicant states the command failed to process the Medical Evaluation Board (MEB) in a timely manner, which exacerbated the applicant’s mental health issues. Had the MEB been processed the applicant would have been discharged before the health condition deteriorated to the point that led to the misconduct. The applicant states the DD Form 214 received lists an Army Good Conduct Medal for the period of service from 15 March 2013 to 14 March 2016, and the applicant does not believe it is just for the misconduct late in the career to cause the entire period of service to be deemed other than honorable. The applicant served five years on active duty and during the last assignment the applicant began suffering from neglected and untreated mental health issues. The applicant served in a remote location, and this complicated attempts to address the applicant’s mental health issues. The applicant states because the applicant was not returning from a deployment, the applicant was not in a priority group for enrollment in the VA system. The applicant was referred to an MEB after command began recognizing the applicant suffering and having difficulties performing duties. The applicant’s MEB dated 6 May 2007, shows the applicant as not meeting retention standards due to major depressive disorder, however, the MEB proceedings were never processed, and the applicant continued to suffer and eventually the applicant suffered a major break down that ultimately led to the discharge. Furthermore, the applicant highlights that the unit Medical Readiness Officer was investigated for a number of infractions involving improper handling of MEB proceedings and the officer was ultimately allowed to retire from the military in lieu of facing up to the misconduct. The applicant states if the MEB had been processed, or if the command would have supported the applicant in dealing with the mental issues, the applicant would have never snapped and the misconduct would never taken place. The MEB never moved forward, and the applicant was forced to continue working 60–70-hour work weeks, under very stressful conditions. The applicant states on 9 September 2016, the date of the misconduct, the applicant was the NCOIC for the unit on a qualifying range and because the applicant had just had panic/anxiety attack earlier that morning, the applicant did not feel comfortable with escorting 2LT P., so the applicant asked to be swapped out with a different soldier and that request was denied. As the applicant and the lieutenant filed onto the range, you could tell there was very little room to maneuver. The lieutenant took a prone unsupported firing position, and the applicant took a position next to the LT. The applicant was being hit by spent casings from the solider on the next firing line, so the applicant tried to move out of the way but was continued to be struck by casings. At this point, the lieutenant asked for permission to place the rifle on full auto. The applicant states asking the lieutenant to pause to get permission from the range NCOIC to do so. The range NCOIC granted permission, and the NCOIC told the applicant to place portions of the applicant’s body on top of the lieutenant’s to maintain a safe firing range. At this time the lieutenant's weapon went left to right. If you have ever been on a firing range with medical officers, you know how dangerous this is, as there are soldiers to the left and right of all the shooters. The applicant then placed body fully on top of the lieutenant to prevent further movement. As soon as the rifle stopped, the applicant ceased all contact with the lieutenant. In retrospect, the applicant states should have pushed harder to not be on the range and run the risk of disobeying orders. The applicant’s mental health issues put self and other Soldiers of the unit in jeopardy. Again, in retrospect, was the left and right movement enough to be considered dangerous? In the applicant’s opinion at that time, it was, but it is easy to second and third guess. With the applicant’s ongoing unaddressed mental health problems, it made it impossible for the applicant to tell at the time. Furthermore, the applicant would like to provide the orders for the good conduct medal. b. Board Type and Decision: In a records review conducted on 8 February 2023, 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 / Under Other Than Honorable Conditions b. Date of Discharge: 16 February 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 August 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 9 September 2016, the applicant made disrespectful statements to superior commissioned officers, 2nd Lieutenants N. E., and K. P., and on or about 9 September 2016, the applicant assaulted 2nd Lieutenant K. P., by laying a portion of body on top of lieutenant without consent. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 30 August 2017 / The applicant waived the right to consult with legal counsel, and the right to request a hearing before an administrative separation board. (5) Administrative Separation Board: The applicant waived the right to an administrative separation board. (6) Separation Decision Date / Characterization: 8 December 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: OAD / 15 March 2013 / 6 years, 5 months, 16 days b. Age at Enlistment / Education / GT Score: 27 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 68J10, Medical Logistics Specialist / 10 years, 5 months, 5 days d. Prior Service / Characterizations: USAR, 11 September 2007 – 8 October 2007 / NA ADT, 9 October 2007- 22 April 2008 / HD USAR, 23 April 2008 – 14 March 2013 /NA (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, GCM, ARCAM, NDSM, GWOTSM, ASR, ARSOTR g. Performance Ratings: 1 December 2013 – 30 November 2014 / Among the Best 1 February 2014 – 30 November 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: One Developmental Counseling Form, for Notification of Formal Sexual Harassment Compliant. Law Enforcement Report – Final, dated 8 May 2017, reflects an investigation established the applicant committed the offense of Abusive Sexual Contact (Adult) and Assault Consummated by a Battery. On 6 August 2017, the applicant received a General Officer Memorandum of Reprimand for assault on an officer and disrespect to superior commissioned officers. On 21 December 2017, the applicant received Orders B-12-210101, Reduction (Disciplinary) notifying the applicant he would be reduced in grade of rank from Sergeant to Private with an effective date of 8 December 2017. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Medical Evaluation Board Proceedings, dated 5 June 2017, reflect the following diagnosis: Major Depressive Disorder, Moderate, with Anxious Distress and Panic Attacks. Report of Mental Status Evaluation, dated 1 November 2017, reflects the applicant was diagnosed with apparent Emotional Distress and Depressive Disorder. It is also noted the applicant displayed significant symptoms of anxiety and depression that required continued behavioral health treatment. The applicant was deemed not fit for duty and had a permanent profile for behavioral health reasons. The applicant was not cleared for administrative separation from the military due to the permanent profile. It was recommended the applicant be able to maintain adequate social support with the applicant family and other close acquaintances as isolation exacerbates depression and increases risk. The applicant provided a copy of a VA disability rating decision, dated 19 September 2019, which reflects, for treatment purposes only, under 38 U.S.C. Chapter 17 for unspecified depressive disorder with anxious distress (also claimed as mental health condition to include major depressive disorder with anxious distress and panic attacks). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Self-Authored Statement; Department of Veterans Affairs Decision Letter; Department of Veterans Affairs Rating Decision, Copy of Orders for the Army Good Conduct Medal; Medical Evaluation Board Proceedings; Medical Documents; eight third-party letters. 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) 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) 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 Army Military Human Resource Record, (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant contends in effect, the applicant suffered from untreated mental health issues which were the underlying cause of the misconduct that led to discharge. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service apparent Emotional Distress and Depressive Disorder. The record shows the applicant underwent a mental status evaluation (MSE) / behavioral health evaluation (BHE) on 1 November 2017, which indicates the applicant had apparent Emotional Distress and Depressive Disorder. It is also noted the applicant displayed significant symptoms of anxiety and depression that required continued behavioral health treatment. The applicant was deemed not fit for duty and had a permanent profile for behavioral health reasons. The applicant was not cleared for administrative separation from the military due to the permanent profile. It was recommended the applicant be able to maintain adequate social support with his family and other close acquaintances as isolation exacerbates depression and increases risk. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member’s medical record. The applicant contends good service. The board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends 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. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: Anxiety Disorder, unspecified; Other specified depressive episodes; Major Depressive Disorder (MDD); Unspecified Depressive Disorder with anxious distress. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant's BH diagnoses as listed above existed during military 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 there are no mitigating BH conditions. While the applicant has been diagnosed with MDD, moderate, recurrent, Anxiety DO, unspecified, and Other Specified Depressive Episodes, none of these diagnoses mitigate sexually based misconduct given that this type of misconduct is not part of the natural sequelae or history of any of his BH diagnosis. Additionally, none of the BH diagnoses affect one’s ability to distinguish right from wrong and act in accordance with 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 the applicant’s Anxiety DO, unspecified; Other specified depressive episodes; MDD; Unspecified Depressive Disorder with anxious distress outweighed the basis for applicant’s separation – disrespect and assault on military officers – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends suffering from untreated mental health issues which were the underlying cause of the misconduct that led to discharge. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that the applicant’s conditions as listed in section 9a(4) above were not causal to the misconduct and did not mitigate or excuse the disrespect and assault misconduct. (2) The applicant contends a medical evaluation board was under process at the time of the separation proceedings and the discharge should have been for medical reasons. The Board considered this contention and determined that disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. Since the applicant was discharge for misconduct, the MEB would not be processed. (3) The applicant contends good service. 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 disrespecting officers and assaulting another, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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 of all the evidence before the Board, the applicant’s MDD, moderate, recurrent, Anxiety DO, unspecified, and Other Specified Depressive Episodes did not excuse or mitigate the offenses of assault and disrespect of military officers. 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, and 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 AR20200003393 1