1. Applicant’s Name: a. Application Date: 18 May 2020 b. Date Received: 2 June 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. The applicant seeks relief contending, in effect, the applicant was having serious issues at home and tried reaching out to command without success. The applicant was accused of wrongdoing, which the applicant denies. The applicant was separated from the AGR program and placed back on M-Day status and was separated from the ARNG 8 months later for the same reason. The applicant was not issued orders placing the applicant on M-Day status. The applicant has been emotional, and this had fed into the applicant’s severe depression. b. Board Type and Decision: In a records review conducted on 17 May 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 / NGR 600-200, Paragraph 6-35i (1) / NA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 15 March 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 February 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted in civil court on one count of Assault and Battery on an 18-year-old recruit. The applicant was jailed for 15 days, remainder of 6 months sentence suspended, and received 2 years of probation and 100 hours of community service; the applicant displayed discreditable conduct unbecoming of an noncommissioned officer (NCO) by failing to follow orders, ordering a subordinate to lie to cover up the misconduct, had a prohibited relationship with a recruit, and inappropriately touched a recruit; the applicant’s misconduct was a violation of the accepted standards of conduct and constitutes conduct prejudicial to good order and discipline. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 12 February 2009 (5) Administrative Separation Board: On 11 December 2008, an administrative separation Board recommended punitive action should be taken against the applicant for conduct unbecoming of an NCO; misuse/unauthorized use of Government Property; and failure to follow order. It was also recommended the applicant be removed from AGR status. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2007 / 6 years (ARNG Extension) b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-7 / 79T40, Recruiting/Retention Noncommissioned Officer, 11B40, Infantryman / 17 years, 6 months, 26 days d. Prior Service / Characterizations: USMC, 20 August 1991 – 19 August 1995 / HD RA, 23 June 1998 – 1 March 2009 / GD (AGR) (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: Marine Corp Meritorious Mast, AAM-2, AGCM-2, Marine Corps Good Conduct Medal, NDSM, AFEM, Navy Sea Service Deployment Ribbon-2 g. Performance Ratings: September 1998 – August 1999 / Among The Best September 1999 – August 2000 / Among The Best October 2001 – September 2002 / Among The Best October 2002 – September 2003 / Among The Best October 2003 – September 2004 / Among The Best November 2004 – July 2005 / Among The Best 1 August 2005 – 31 July 2006 / Among The Best 1 August 2005 – 31 July 2006 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Letter of Reprimand, dated 4 June 2008, reflects the applicant was reprimanded for acting in an unprofessional manner at an after-hours party following the Recruiting Retention Ball. A Record of Nonjudicial Punishment Proceedings (National Guard Form Memorandum), Appendix A, dated 14 May 2009, reflects the applicant committed assault and battery on a recruit; NCOIC misconduct and impropriety; unprofessional conduct unbecoming of an NCO; and failing to follow orders. The form reflects an AR 15-6 Investigation, and the Criminal Docket of court proceedings found the applicant committed the offenses listed above. The punishment consisted of reduction one rank; revocation of recruiting badge; suspension of security clearance; and a General Officer Letter of Reprimand. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, NGB Form 22, DD Form 214, letter of support 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. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35i (1) defers to AR 135-178, chapter 12. e. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. (1) Paragraph 2-9a prescribes an honorable characterization 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. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 12 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, and convictions by civil authorities. 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 12-1b, describes a pattern of misconduct as discreditable conduct and conduct prejudicial to good order and discipline include conduct which violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time- honored customs and traditions of the Army. (6) Paragraph 12-8 states the characterization of service will normally be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines on chapter 2, section III. 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 Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the applicant was having serious issues at home and tried reaching out to command without success. 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 the applicant was accused of wrongdoing, which the applicant denies. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant contends the discharge is causing the applicant to be emotional and has fed into the applicant’s severe depression. The applicant’s AMHRR contains no documentation of severe depression diagnosis. 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 Army Review Board Agency sent email correspondence to the applicant on 17 August 2021 requesting documentation to support a PTSD diagnosis but received no response from the applicant. 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 applicant's statement. The applicant asserts the discharge "fed" into depression. The applicant did not hold an in-service diagnosis. The applicant's post-service diagnoses of Major Depressive Disorder (MDD) and Adjustment Disorder are not service connected or related. (2) Did the condition exist, or experience occur during military service? No. The documented conditions are post-service and NOT service connected. While the applicant asserts depression, this is noted to be post-service; applicant is not asserting depression in- service influencing the misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the documented conditions are post-service and not service connected. While the applicant asserts depression, this is noted to be post-service; applicant is not asserting depression in-service influencing the misconduct. (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 the available evidence did not support a conclusion that the applicant had any behavioral health conditions that would outweigh the pattern of misconduct- assault and battery on an 18- year-old recruit, prohibited relationship with a recruit, inappropriately touching a recruit, conduct unbecoming of an NCO, misuse/unauthorized use of Government Property and failing to follow orders basis for applicant’s separation for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the applicant was having serious issues at home and tried reaching out to command without success. The Board liberally considered this contention and determined that the applicant’s assertion of depression (post-service diagnoses of Major Depressive Disorder (MDD) and Adjustment Disorder) does not mitigate the applicant’s pattern of misconduct - assault and battery on an 18-year-old recruit, prohibited relationship with a recruit, inappropriately touching a recruit, conduct unbecoming of an NCO, misuse and unauthorized use of Government Property and failing to follow orders. Also, there is no evidence in the applicant’s AMHRR that the applicant ever sought assistance before committing the misconduct, which led to the separation action under review as the Army affords many avenues to Soldier’s including seeking separation for hardship. (2) The applicant contends the applicant was accused of wrongdoing, which the applicant denies. The Board considered this contention and determined that the applicant record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. (3) The applicant contends the discharge is causing the applicant to be emotional and has fed into the applicant’s severe depression. The Board considered this contention and the applicant’s assertion of depression, however the Board determined that there is insufficient evidence of said diagnoses in official or medical records. The applicant's post-service diagnoses of Major Depressive Disorder (MDD) and Adjustment Disorder would allow the applicant to seek counseling or therapy through the VA services. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board considered the applicant's statement, record of service, the frequency and nature of his misconduct, and the reason for the applicant separation and found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding no service-connected BH conditions that mitigate the totality of the applicant misconduct: assault and battery on an 18-year-old recruit, prohibited relationship with a recruit, inappropriately touching a recruit, conduct unbecoming of an NCO, misuse and unauthorized use of Government Property and failing to follow orders. The Board considered the totality of the applicant’s service record and determined that a discharge upgrade is not warranted. 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, 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 Change 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 AR20200008093 1