1. Applicant’s Name: a. Application Date: 11 May 2020 b. Date Received: 19 May 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 general (under honorable conditions). The applicant requests an upgrade to honorable, a separation code change, a reentry code change, and a narrative reason change. The applicant seeks relief contending, in effect, the DD Form 214 does not portray the applicant’s character. The applicant was wrongfully discharged by the unit. The applicant believes, as a young adult with no guidance, was stripped of a different outcome to the life and benefits. The applicant deserves the benefits earned. In the previous unit with good leadership, the applicant had good performance and received a promotion. Upon reassignment to another unit, everything went downhill, the applicant was treated differently for being known as a “snitch,” and was assaulted by a group of Soldiers from another unit. The applicant was then reassigned to the same unit the Soldiers who attacked the applicant were assigned. The counseling statements the applicant received were a month apart and were given to establish a pattern of misconduct for separation. The applicant did not receive sufficient counseling to correct the actions. The leadership took the easy route and started discharging Soldiers. The issues were because of the illegal conduct of leaders and lack of real leadership in the unit. The applicant never received the correct guidance from true leadership. The accomplishments achieved post separation show the applicant was just misguided by the leadership. b. Board Type and Decision: In a records review conducted on 12 April 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 12 June 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 May 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received a FG Article 15 (NIF) for assault, resisting apprehension, drunk and disorderly, and underage drinking. The applicant also received numerous counseling on divers occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 May 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 May 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 January 2007 / 3 years b. Age at Enlistment / Education / GT Score: 17 / GED / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13P10, Multiple Launch Rocket System / Fire Direction Specialist / 1 year, 4 months, 20 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: Four Developmental Counseling Forms for driving without a license; being disrespectful towards an NCO; disobeying an NCO; failing to go at the time prescribed to the appointed place of duty; and failing to follow instructions. Military Police Report, dated 21 July 2007, reflects the applicant was apprehended for: simple assault – consummated by a battery. Military Police Report, dated 15 March 2008, reflects the applicant was apprehended for: simple assault upon an NCO; disrespect towards an NCO; communicating a threat; resisting apprehension; and conduct unbecoming of a member of the military service by drinking underage without permission. Report of Mental Status Evaluation, dated 1 May 2008, reflects the applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The MSE indicated an AXIS I diagnosis as “Alcohol Abuse (Provisional). The applicant’s Enlisted Record Brief (ERB), dated 6 May 2008, reflects the applicant was flagged for Involuntary Separation or Discharge (Field Initiated) (BA), effective 28 April 2008, and for Adverse Action (AA), effective 15 March 2008. The Assignment Eligibility Availability code reflects the applicant was eligible for PCS reassignment, subject to normal PCS TOS restrictions. There is no termination date. The applicant was reduced from E-3 to E-1 effective 1 April 2008. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; ERB; July 2007 medical treatment records; DA Forms 4856; Food Safety Manager certificate; Phlebotomy Technician certificate with identification card; Medical Assistant certificate with identification card; Medical/Allied Health Support Technician certificate; business college transcript; and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant’s evidence of accomplishments reflect having completed the Texas Food Manager Certification Program; being certified as a National certified Phlebotomy Technician and Medical Assistant; being awarded outstanding academic achievement in the program of Medical/Allied Health Support Technician; and attending a business college. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable, a narrative reason change, a separation code change, and a reentry code change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Pattern of Misconduct,” and the separation code is “JKA.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly 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 contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12b, is “JKA.” The applicant requests a reentry eligibility (RE) code change. 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. The applicant contends being wrongfully discharged from the unit because of illegal conduct of leadership and lack of real leadership, and the counseling statements received were a month apart and were given to establish a pattern of misconduct for separation. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends youth and receiving no guidance from the leadership affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends having good service and receiving a promotion. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends deserving the benefits earned. Eligibility for veterans’ 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. The applicant contends not receiving sufficient counseling to correct the actions. Army Regulation 635-200, paragraph 1-17b, states, when a Soldier’s conduct or performance becomes unacceptable, the commander will ensure a responsible official formally notifies the Soldier of the deficiencies, and at least one formal counseling session is required before initiating separation proceedings for the reasons specified in paragraph 1-17a, i.e., pattern of misconduct; evidence the deficiencies continued after the initial formal counseling; and the number and frequency of formal counseling sessions are discretionary. Such factors include length of time since the prior counseling, the performance and conduct during the intervening period, and the commander’s assessment of the Soldier’s potential for becoming a fully satisfactory Soldier, must be considered in determining if further counseling is needed. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. The applicant contends the accomplishments achieved post-separation reflect the applicant was just misguided by the leadership. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The applicant claims PTSD, TBI, Sexual Assault/Harassment, and Reprisal/Whistleblower issues are related to the applicant’s request. The applicant’s AMHRR contains no documentation of PTSD or TBI diagnoses, or evidence of sexual assault/harassment and reprisal/whistleblower. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 1 May 2008, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does indicate an Axis I diagnosis as alcohol abuse (provisional). The MSE was considered by the separation authority. The ARBA sent a letter to the applicant at the address in the application on 2 August 2021, requesting documentation to support a PTSD diagnosis but received no response from the applicant. The burden of proof remains with the former Soldier to provide the appropriate documents such as the medical diagnoses for PTSD and TBI by a competent medical authority, and investigative documentary evidence of a sexual assault/harassment and reprisal/whistleblower, for the Board's consideration. If the applicant desires a personal appearance hearing, it would still be the applicant’s responsibility to meet the burden of proof since documentary evidence are not available in the official record. 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 and/or civilian provider documentation and found that records are void of a behavioral health diagnosis. However, the applicant asserted, via marking the application boxes, Post Traumatic Stress Disorder, Traumatic Brain Injury, and Military Sexual Trauma. Of note, medical records do include a July 2007 assault which may be the basis for the PTSD assertion. (2) Did the condition exist or experience occur during military service? Yes. The applicant marked PTSD, TBI, and MST on his application. While there are no records in support of these, the applicant was assaulted in July 2007. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that mitigation cannot be determined as records are void of a behavioral health condition or experience and the applicant did not submit records in support of marking boxes PTSD, TBI, and MST on the application. However, records do include a July 2007 assault that could be considered which would mitigate misconduct related to substance use, difficulty with authority, and avoidance. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that while the applicant’s asserted PTSD, TBI, and MST could outweigh the applicant’s pattern of misconduct basis of separation, the Board could not determine whether the applicant’s asserted PTSD, TBI, and MST actually outweigh the applicant’s assault, resisting apprehension, drunk and disorderly, and underage drinking without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s asserted behavioral health conditions outweigh the applicant’s discharge. b. Response to Contention(s): (1) The applicant contends PTSD, TBI, Sexual Assault/Harassment, and Reprisal/ Whistleblower issues are related to the applicant’s request. The Board considered this contention and, after applying liberal consideration to the evidence, including the Board Medical Advisor opine, determined that while the applicant’s asserted PTSD, TBI, and MST could outweigh the applicant’s use basis of separation, the Board could not determine whether the applicant’s asserted PTSD, TBI, and MST actually outweigh the applicant’s assault, resisting apprehension, drunk and disorderly, and underage drinking without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board is unable to determine if the applicant’s asserted behavioral health conditions outweigh the applicant’s discharge. Similarly, the Board could not make a determination regarding applicant’s Reprisal/Whistleblower contention without supporting evidence. Therefore, the Board found that, at this time, the discharge was proper and equitable. (2) The applicant contends the narrative reason, SPD code, and reentry eligibility (RE) need to be changed. The Board considered this contention and determined that the applicant received the appropriate narrative reason, SPD code, and RE code for the discharge specified by AR 635-200, paragraph 14-12b. (3) The applicant contends being wrongfully discharged from the unit because of illegal conduct of leadership and lack of real leadership, and the counseling statements received were a month apart and were given to establish a pattern of misconduct for separation. The Board voted after considering the contention and, finding insufficient evidence of the Command acting in an arbitrary or capricious manner, determined that the discharge was proper and equitable. (4) The applicant contends youth and receiving no guidance from the leadership affected the applicant’s behavior at the time of the discharge. The Board considered this contention and found that 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 determined that this contention, and the lack of evidence to support it, does not warrant a discharge upgrade at this time. (5) The applicant contends deserving the benefits earned. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (6) The applicant contends the accomplishments achieved post-separation reflect the applicant was just misguided by the leadership. The ADRB is authorized to consider post- service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. In this case, the Board considered this contention and determined that the applicant’s post-service achievements do not rise to a level meriting a discharge upgrade. c. The Board denied the request upon finding the separation was both proper and equitable. However, the applicant may request a personal appearance hearing to address further 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, narrative reason, and SPD and RE codes because, despite applying liberal consideration of all the evidence before the Board, there was insufficient evidence of applicant’s PTSD, TBI, and MST to excuse or mitigate the pattern of misconduct basis of separation. The Board also considered the applicant's contention regarding youthful indiscretion and the actions of applicant’s command and found that totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (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 AR20200007280 1