1. Applicant's Name: a. Application Date: 17 April 2020 b. Date Received: 9 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, a change is requested because of deserving an honorable discharge. After seeing various psychologists while serving to help with the depression, the applicant tried to complete the service with good conduct. Receiving mental behavioral assistance and medications helped, but certain NCOs in the platoon pushed the applicant to not finish the remaining time properly. The applicant had five or six months remaining, and even with begging to be allowed to complete the time, the applicant was not given the chance. The peers were happy with the applicant and NCOs in other platoons had no issues with the applicant. Because of having issues with the same NCOs from the beginning, the applicant started seeing behavioral health, to help with getting through. Although not being the best Soldier, the applicant did not deserve the current character of service. The applicant is on medications for depression and still having nightmares. b. Board Type and Decision: In a records review conducted on 21 April 2023, and by a 5-0 vote, the Board determined that the discharge was inequitable based on the applicant's Adjustment DO with mixed disturbance of emotions and conduct; Anxiety DO NOS; Phase of Life Circumstance Problem mitigating the applicant's misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 8 March 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 January 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On 25 June 2017, the applicant failed to obey an NCO, SGT J. N., by failing to give a class on proper military and professional bearing, order, discipline, and respect. Between 13 and 16 January 2017, the applicant failed to obey the 2nd Cavalry Regiment Policy Letter #14, Leave and Pass Policy, by travelling outside the country without authorization. On 28 November 2016, the applicant was disrespectful towards an NCO, SSG T. H., by sighing and rolling the eyes while SSG T. H. was speaking to the applicant. On 5 June 2016, the applicant made a false official statement, to wit: "Roger Sergeant" or words to that effect, when asked whether the applicant cleaned the weapon and staged the ammunition in the assistant gunner bag. On 5 June 2016, the applicant failed to obey an NCO, SGT S. Z., by failing to clean the weapon and stage the ammunition in the assistant gunner bag. On 5 June 2016, the applicant was disrespectful towards an NCO, SSG M. A., by raising the hands above the head in a mocking gesture after being told to keep the hands out of the pockets. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 January 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 7 February 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 April 2015 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 2 years, 10 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWOTSM, ASR The applicant's AMHRR reflects award of the OSR, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Developmental Counseling Forms, for failing to obey a lawful order; insubordination towards an NCO; and unauthorized travel outside Germany. CG Article 15 dated 9 September 2016, for being disrespectful in deportment towards an NCO on 5 June 2016, by raising both the arms above the head in a mocking gesture after being told to keep hands out of the pocket; for disobeying an NCO on 5 June 2016; and making a false official statement on 5 June 2016. The punishment consisted of forfeiture of $409 pay (suspended). Record Of Supplementary Action Under Article 15, UCMJ, dated 21 February 2017, reflects the suspended portion of the punishment, forfeiture of $409 pay, imposed on 9 September 2016, was vacated for violation of Article 91, by being disrespectful in deportment towards an NCO, by rolling the eyes while the NCO was speaking to the applicant. FG Article 15 dated 7 March 2017, for being disrespectful in deportment towards an NCO on 28 November 2016 and disobeying a lawful leave policy between 13 and 16 January 2017, by wrongfully traveling outside the country of Germany. The punishment consisted of a reduction to E-1; forfeiture of $799 pay (suspended); and extra duty and restriction for 30 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Medical Record (Diagnosis History), dated 26 February 2018, reflects diagnoses of an adjustment disorder with mixed disturbance of emotions and conduct; anxiety disorder (NOS); and psychiatric diagnosis or condition deferred on AXIS I. VA Summary of Benefits letter, dated 18 May 2020, reflects the applicant received a service- connected disabilities evaluation of 80 percent, but without further reference on the specifics of the disabilities. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Medical Records (Diagnosis History); and Summary of Benefits VA letter. 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 Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends having received help from various psychologists while serving with the depression to assist with getting through and the applicant is on medications for depression and still having nightmares. The applicant provided medical documents indicating diagnoses of an adjustment disorder with mixed disturbance of emotions and conduct, and anxiety disorder prescribed medications. The AMHRR is void of any mental status or behavioral health evaluations. The applicant contends being harassed by members of the platoon by being pushed to not finish the remaining time properly and having issues with the same leaders, the applicant started seeing behavioral health. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does have records showing the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishments. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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: Adjustment DO with mixed disturbance of emotions and conduct; Anxiety DO NOS; Major Depressive DO (MDD-70% SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnoses of Adjustment DO, and Anxiety DO NOS were made during military service. VA service connection for MDD establishes it occurred during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has a BH condition, MDD (under which the diagnosis of Adjustment DO is subsumed), which mitigates some of the applicant's misconduct. Given that depressive symptom can appear as oppositional behavior in adolescents and young adults, there is a nexus between the applicant's diagnosis of MDD and the offenses of being disrespectful to an NCOs and deliberately failing to give a class on proper deportment as requested by applicant NCO. These offenses are mitigated under liberal consideration. The offenses of traveling outside the country without authorization and making a false official statement are not mitigated by MDD given that MDD does not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's Adjustment DO with mixed disturbance of emotions and conduct; Anxiety DO NOS; Major Depressive DO (MDD-70% SC) outweighed the multiple FTRs and failures to follow orders for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends having received help from various psychologists while serving with the depression to assist with getting through and the applicant is on medications for depression and still having nightmares. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment DO with mixed disturbance of emotions and conduct; Anxiety DO NOS; Major Depressive DO (MDD-70% SC). (2) The applicant contends being harassed by members of the platoon by being pushed to not finish the remaining time properly and having issues with the same leaders, the applicant started seeing behavioral health. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment DO with mixed disturbance of emotions and conduct; Anxiety DO NOS; Major Depressive DO (MDD-70% SC). c. The Board determined the discharge is inequitable based on the applicant's Adjustment DO, Anxiety DO NOS due to harassment and MDD experiences outweighing the applicant's Misconduct: disrespectful to an NCOs, deliberately failing to give a class on proper deportment as requested by applicant NCO, traveling outside the country without authorization and making a false official statement. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Adjustment DO, Anxiety DO NOS due to harassment and MDD experiences outweigh the separation- for disrespectful to an NCOs, deliberately failing to give a class on proper deportment as requested by applicant NCO, traveling outside the country without authorization and making a false official statement. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20200008541 1