1. Applicant's Name: a. Application Date: 27 August 2020 b. Date Received: 27 August 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 uncharacterized. The applicant requests an upgrade to honorable and a narrative reason change. b. The applicant seeks relief contending, in effect, recommendations by the mental health evaluator on 20 July 2007 were disregarded by the command and set the applicant up for future distress and failures including an Article 15 for pushing another Soldier on 27 July 2007. On 10 August 2007, the applicant received a counseling for developmental and rehabilitation which states the cadre did not believe that the applicant's mental and psychological issues would improve and those problems would interfere with future assignments. On 2 (10) August 2007, the applicant was counseled by the company commander after the applicant was seen by CMHS and still showed no signs of improvement. On 10 (21) August 2007, the applicant was counseled to inform the applicant of a separation under AR 635-200, paragraph 5-17, Condition, Not a Disability, which never happened. c. Board Type and Decision: In a records review conducted on 1 November 2023, and by a 5-0 vote, the Board determined the narrative reason for the applicant's separation is inequitable based on the multiple recommendations for separation by behavioral health professionals with supporting documentation. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, and the narrative reason for separation to Condition, Not a Disability, with a corresponding separation code to JFV. The board determined the RE code was proper and equitable and voted not to change it. 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 / Uncharacterized b. Date of Discharge: 27 August 2007 c. Separation Facts: The applicant's AMHRR contains the case separation file. However, the applicant provided documents which are described below in 3c(1) through (6). (1) Date of Notification of Intent to Separate: Date is Illegible (2) Basis for Separation: The applicant was informed of the following reasons: Since the applicant's arrival the applicant has been disrespectful and failed to display proper customs/courtesies to commissioned and noncommissioned officers and disobeyed direct orders. The applicant has also assaulted a fellow Soldier in training. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: 16 August 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Unspecified date / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 June 2007 / 4 years b. Age at Enlistment / Education / GT Score: 17 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 2 months and 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) CG Article 15, 1 August 2007, for unlawfully assaulting another Soldier by pushing the Soldier on or about 27 July 2007. The punishment consisted of forfeiture of $280.00 pay for 1 month ($80.00 suspended); and extra duty for 14 days. (2) The applicant provided Self-Referral for Mental Health Evaluation form, 17 July 2007, showing the applicant requested an evaluation. The company commander states the applicant gets along on the job with others and supervisor. (3) Developmental Counseling Form, 18 July 2007, for the inability to handle stress and change. (4) Developmental Counseling Form, 27 July 2007, for pushing another Soldier. (5) Report of Medical History, 10 August 2007, the examining medical physician noted in the comments section: History of depression and migraines. (6) The applicant provided: (a) Developmental Counseling Form, 10 August 2007, that shows the company commander counseled the applicant stating the applicant arrived on 22 June 2007 in a reasonable state of mental/psychological and physical health. At that time, the applicant felt they were able and capable to integrate and conform to the military and begin the process to become a Soldier. Over time the applicant complained of anxiety, depression, problems sleeping, eating, concentrating, suicidal thoughts, and an inability to adjust. The cadre believed that the applicant was not a good candidate for retention. The company commander addressed the applicant's visit with the psychologist on 20 July 2007 and mentioned the visit on 2 August 2007. (b) Developmental Counseling Form, 16 August 2007, that shows the applicant was counseled for conduct unbecoming of a Soldier, inability to conform, and lack of effort to adapt to the military environment. (c) Developmental Counseling Form, 21 August 2007, that shows the company commander counseled the applicant stating the first two visits to Community Mental Health Services (CMHS) (20 July and 3 August 2007) do not state what type of discharge the applicant should receive but they recommend that administrative separation should be initiated immediately. The last evaluation (20 August 2007) states the applicant should receive a chapter 11, Entry Level Performance and Conduct. According to the MEDCOM Policy Memorandum, Reducing Initial Entry Soldier Attrition for Medical and Behavioral Health Reasons, CMHS can and is able to recommend Soldiers who meet the criteria for paragraph 5-11, Failed Medical/Physical/Procurement Standards, paragraph 5-13, Personality Disorder, or paragraph 5-17, Condition, Not a Disability. CMHS does not believe the applicant qualifies and will not recommend the applicant for paragraphs 5-11, 5-13 or a 5-17 under AR 635-200. CMHS is not allowed to recommend a chapter 11, Entry Level Performance and Conduct, in accordance with the MEDCOM Policy Memorandum. The company commander attempted to chapter the applicant under paragraphs 5-11 and 5-17 to no avail. In part, the applicant has stated "just want to go home," "just don't want to be here," "would refuse to ship to BCT [basic combat training]," and "would do anything to get home and would accept any type of chapter [applicant] could get as long as [applicant] were going home." After speaking with the applicant on many occasions, the company commander believed that to a certain degree the CMHS evaluations are accurate but the company commander also believed that the applicant did not have any mental/psychological issue that would prevent the applicant from successfully accomplishing and completing BCT. There is a difference between not being able to do something and not wanting to do something. The company commander believed that the applicant could go to BCT and be successful and did not believe the applicant was unable to accomplish BCT. In light of these facts, the company commander recommended the applicant for a chapter 14. (7) The applicant provided memorandum, recommendation to separate (Applicant) under AR 635-200, paragraph 14-12b, 21 August 2007, from the defense counsel to the company commander, that states the applicant has had difficulty adapting to life as a Soldier in training, however, the applicant sought out treatment but the advice the applicant received and that was given to the chain of command was not followed by the chain of command which clearly set the applicant up for failure. Counsel requested that the applicant not be punished for mental issues that the applicant was dealing with by chaptering the applicant under paragraph 14-12b, instead, it would be a fair and just action to separate the applicant under Chapter 11. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: (a) Report of Mental Status Evaluation (MSE), 20 July 2007, showing the applicant self- referred for a MSE. The applicant has been at the reception for nearly 1 month. The applicant was diagnosed with adjustment disorder with depressed mood and occupational problem. There was moderate potential for self-harm. The applicant reported history of self-mutilation by cutting and mental health treatment for depression. The applicant was considered potentially dangerous and increased supervision was recommended. The evaluator recommended an administrative separation and stated in their professional opinion, the applicant will not respond to command efforts at rehabilitation nor to any treatment methods currently available in any military mental health facility. It was recommended that the applicant not be shipped to BCT. (b) Report of MSE, 3 August 2007, showing the same as the MSE, 20 July 2007. The applicant has been at the reception for 44 days. The applicant continues to report feeling depressed with problems sleeping, eating, concentrating and daily headaches that have not improved with medication prescribed by the Troop Medical Clinic. It was very strongly recommended that the applicant be administratively separated from the Army. (c) Report of MSE, 20 August 2007, showing the same as the MSE, 3 August 2007. The applicant has been at the reception for 60 days. The applicant continues to have depressive symptoms with continued poor motivation to be in the Army. An administrative separation, chapter 11, Entry Level Performance and Conduct, was very strongly recommended. (d) Butte Community Health Center, 18 October 2011, showing stress related to raising twins and at times non supportive husband impossible depression. (e) Butte Community Health Center, 9 November 2011, showing depression and stress related to care of the applicant's twins. (f) River Home Psychological Services Letter, 12 July 2022, showing treatment was provided between May 2021 and April 2022. The applicant was diagnosed with major depressive disorder, recurrent, moderate, and complex post-traumatic stress disorder. (g) Department of Veterans Affairs disability rating decision, 3 March 2023, showing the applicant's 70 percent disability for major depressive disorder (previously rated as major depressive disorder with bulimia) was continued. (2) AMHRR Listed: MSE as described in previous paragraph 4j(1). 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; self-referral for mental health evaluation; case separation packet; River Home Psychological Services Letter; Butte Community Health Center medical records; DA Form 4, one page; self-authored statement; VA Summary of Benefits and Rating Decision. 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 14-12b, 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) 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. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 and a narrative reason change. The applicant's AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant's DD Form 214 shows the applicant served 2 months and 7 days. The applicant received a CG Record of Proceedings under Article 15 for pushing a Soldier. The applicant was discharged for disrespect, failing to display proper customs/courtesies to commissioned and noncommissioned officers, disobeying direct orders, and assaulting a fellow Soldier in training. The applicant was discharged with an uncharacterized characterization of service on 27 August 2007. The applicant contends, in effect, recommendations by the mental health evaluator on 20 July 2007 were disregarded by the command and set the applicant up for future distress and failures including an Article 15 for pushing another Soldier on 27 July 2007. The applicant provided Developmental Counseling Form, 10 August 2007, which shows the company commander counseled the applicant stating the applicant arrived on 22 June 2007 in a reasonable state of mental/psychological and physical health. At that time, the applicant felt they were able and capable to integrate and conform to the military and begin the process to become a Soldier. Over time the applicant complained of anxiety, depression, problems sleeping, eating, concentrating, suicidal thoughts, and an inability to adjust. The cadre believed that the applicant was not a good candidate for retention. The company commander addressed the applicant's visit with the psychologist on 20 July 2007 and mentioned the visit on 2 (3) August 2007. Developmental Counseling Form, 16 August 2007, shows the applicant was counseled for conduct unbecoming of a Soldier, inability to conform, and lack of effort to adapt to the military environment. The applicant contends, in effect, on 10 (21) August 2007, the applicant was counseled to inform the applicant of a separation under AR 635-200, Chapter 5-17, which never happened. The applicant provided Developmental Counseling Form, 21 August 2007, states the company commander attempted to chapter the applicant under paragraphs 5-11 and 5-17 to no avail. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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: the applicant held an in- service diagnosis of Adjustment Disorder with recommended separation due to behavioral health difficulties. Post-service, the applicant is service connected for Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder with recommended separation due to behavioral health difficulties. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that given the multiple recommendations for separation by behavioral health professionals with supporting documentation, a 5-14 discharge is recommended keeping the Uncharacterized and RE3. (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's Adjustment Disorder and Major Depressive Disorder outweighed the basis for applicant's separation for disrespect towards a commissioned officer, noncommissioned officer, disobeying a lawful order, and assault of another Solder for the aforementioned reasons. However, the Board determined the narrative reason for the applicant's separation was inequitable based on multiple recommendations made by behavioral health professionals. b. Response to Contention(s): (1) The applicant contends, in effect, recommendations by the mental health evaluator on 20 July 2007 were disregarded by the command and set the applicant up for future distress and failures including an Article 15 for pushing another Soldier on 27 July 2007. The Board determined that this contention was valid and voted to change the applicant's narrative reason for separation based on the multiple recommendations for the applicant's separation by behavioral health professionals with supporting documentation. (2) The applicant contends, in effect, on 10 (21) August 2007, the applicant was counseled to inform the applicant of a separation under AR 635-200, Chapter 5-17, which never happened. The Board considered this contention during proceedings, but ultimately did not address the contention because the applicant's is being granted a change to the narrative reason for separation based on the multiple recommendations for the applicant's separation by behavioral health professionals with supporting documentation. c. The Board determined that the narrative reason for the applicant's separation is inequitable based on the multiple recommendations for separation by behavioral health professionals with supporting documentation. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, and the narrative reason for separation to Condition, Not a Disability, with a corresponding separation code to JFV. The board determined the RE code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, in accordance with AR 635-200 and based on the applicant's official record the applicant was separated while in an entry level status and Uncharacterized discharge is the proper characterization of service except when the DCS, G-1 determines that an Honorable discharge is warranted based on unusual circumstances involving personal conduct and performance of duty, which is not applicable in this case. Therefore, no change is warranted. (2) The Board voted to change the reason for discharge to Condition, Not a Disability based on the multiple recommendations for the applicant's separation by behavioral health professionals with supporting documentation, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFV. (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: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: Condition, Not a Disability/ JFV d. Change RE Code to: No Change e. Change Authority to: AR 635-200 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 AR20200008265 1