1. Applicant’s Name: a. Application Date: 26 February 2020 b. Date Received: 16 March 2020 c. Counsel: Yes 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, having joined the Army to protect the country, the time spent in the Army changed the life for the better in many ways and learned valuable life skills. The applicant hit a rough spot in life because of spouse's infidelity and made poor choices in search of happiness. Going through a traumatic divorce caused mental and financial strain, which affected the mental outlook and ultimately affected the work performance. Feeling alone and missing family, the applicant was diagnosed with patellar tendinopathy shortly after arriving to 25th ID. The applicant was given only two weeks off from Physical Readiness Training and was required to return to PRT after the profile ended. The applicant was not afforded the opportunity to return to sick call for the existing pain on multiple occasions, which led to being graded poorly on the physical performance. The applicant was also experiencing severe insomnia and sleep deprivation and had difficulty waking up. After repeated requests for help, the applicant was not allowed the opportunity to see a doctor for the issues. Notwithstanding the experiences, the applicant is now in a better mindset. The applicant contends other mental health issues are related to the request for an upgrade. The applicant would join the Army all over again and has greatly matured. b. Board Type and Decision: In a records review conducted on 3 March 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 / General (Under Honorable Conditions) b. Date of Discharge: 29 June 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: Commander’s Notification Memorandum NIF, but according to the Commander’s Report, the applicant was being recommended for separation for the following reasons: On divers occasions between 1 and 27 November 2018, the applicant willfully disobeyed lawful orders from a noncommissioned officer; and on divers occasions failed to go at the time prescribed to the appointed place of duty. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: In an undated memorandum / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 November 2016 / 3 years, 23 weeks (The applicant extended the enlistment by a period of one month on 16 October 2018, giving the applicant a new ETS of 9 May 2020.) b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13J10, Fire Control Specialist / 2 years, 7 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: NDSM, GWOTSM, ASR The applicant’s AMHRR reflects award of an AAM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 22 January 2019, for failing to go at the time prescribed to the appointed place of duty on 30 November 2018; disobeying an NCO on 27 November 2018, and on three separate occasions between 1 and 10 November 2018; being derelict in the performance of duty between 1 and 10 November 2018; and disobeying a superior commissioned officer between 1 and 10 November 2018. The punishment consisted of a reduction to E-3; forfeiture of $491 pay (suspended); and extra duty and restriction for 14 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 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) 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 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) and the issues submitted with the application were carefully reviewed. The applicant contends family issues, the infidelity of the spouse and divorce, affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service, because the time spent in the Army changed the life for the better in many ways and learned valuable life skills. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends not being given the opportunity to return to sick call on multiple occasions for a medical condition, which led to poor physical performance. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the repeated requests to see a doctor for severe insomnia and sleep deprivation were denied. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by the imposition of non- judicial punishment. The applicant contends other mental health issues are related to the request for an upgrade. The applicant’s AMHRR contains no documentation of any behavioral health diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge related from any medical condition. If the applicant desires a personal appearance hearing, it would still be the applicant’s responsibility to meet the burden of proof to provide the medical records reflecting a diagnosis of a behavioral health issue by a competent medical authority, for the Board’s consideration, since there is none available in the applicant’s AMHRR. The applicant contends having greatly matured and would join the Army all over again. The AMHRR shows the applicant met entrance qualification standards to include age. If the applicant desires to rejoin the Military Service, Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of “3.” An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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: the applicant asserts 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. Applicant asserts mental health issues in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical Advisor applied liberal consideration of all available evidence and opined that there are no mitigating conditions or experiences for consideration. The generic applicant assertion is not specific or supported by medical documentation where the Board can apply mitigating measures. (4) Does the condition or experience outweigh the discharge? No. The Board voted that there were no conditions with might outweigh the misconduct as the weight of the applicant’s claim was minimal due to the severity and repeated nature of the applicant’s misconduct. b. Response to Contentions: (1) The applicant contends family issues, the infidelity of the spouse and divorce, affected behavior and ultimately caused the discharge. The Board considered this along with the totality of the service record. However, there is no evidence in the official records nor provided by the applicant which verify the applicant pursued assistance with family issues. As the Army has family advocacy resources available to service members requesting assistance with family issues, the Board determined that the applicant’s failure to obey lawful orders and failure to report is not an acceptable response to resolving family issues, thus the applicant was properly and equitably discharged. (2) The applicant contends not being given the opportunity to return to sick call on multiple occasions for a medical condition, which led to poor physical performance. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with medical issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s failure to obey lawful orders and failure to report is not an acceptable response to dealing with medical issues, thus the applicant was properly and equitably discharged. (3) The applicant contends the repeated requests to see a doctor for severe insomnia and sleep deprivation were denied. The Board considered this contention along with the totality of the service records and found no evidence, other than the claims of the applicant, of the command acting in an arbitrary or capricious manner. (4) The applicant contends other mental health issues are related to the request for an upgrade. The Board considered this contention and the applicant’s assertion of a mental health condition, however the Board determined that there is insufficient evidence of said diagnoses 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. (5) The applicant contends having greatly matured and would join the Army all over again. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is insufficient evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant’s discharge for failure to obey lawful orders and failure to report is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because there were no mitigating factors for the Board to consider. Since the applicant was discharged for the offenses of failure to obey lawful orders and failure to report, General (Under Honorable Conditions) 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, 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 AR20200005984 1