1. Applicant’s Name: a. Application Date: 21 April 2020 b. Date Received: 27 April 2020 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant, through counsel, requests an upgrade of the characterization of service to honorable. The applicant seeks relief contending, in effect, the discharge was improper, inequitable, an error, and an injustice because treatment for a mental health condition was not properly provided. The applicant carried a weapon due to paranoia and fear, which are symptoms of a service-connected mental health condition, that resulted from service in the Middle East. This was not considered while processing the discharge. Absent this one event, the applicant’s time in service was flawless. The applicant lost a career in the Army and the general discharge combined with a mental health condition has made work unattainable after leaving the Army. Further, the Kurta and Hagel Memorandums were not properly considered in the service classification. The applicant would have received a different discharge status if these improprieties, injustices, inequities, and errors had not been made. Counsel states the current law bars veterans from receiving certain, otherwise earned, benefits for discharges received under general (under honorable conditions). In order to eliminate this bar encountered by the applicant, the applicant requests a discharge upgrade to honorable. A mental health condition has been explained as the cause of the applicant’s criminal weapons charge. While not a complete defense to the applicant’s charge in court, it was a mitigating factor in sentencing and should also be considered a favorable factor in this request. The Veterans Affairs (VA) service-connected the applicant's mental health condition of adjustment disorder with mixed anxiety and depressed mood (see Rating Decision), pursuant to the Kurta Memorandum (see attached), "[a] determination made by .... Department of Veterans Affairs (VA) that a veteran's mental health condition ... is connected to military service, while not binding on the DoD [Department of Defense], is considered persuasive evidence that the condition existed or the experience occurred during military service.” Further, the Kurta Memo provides that, "[a] diagnosis made by a licensed psychiatrist or psychologist that the condition existed during military service will receive liberal consideration." b. Board Type and Decision: In a records review conducted on 1 March 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 June 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 May 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 31 October 2016, the applicant wrongfully pointed a 9mm handgun at Ms. M.G. and wrongfully waved a 9mm handgun around in a public place. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 May 2017 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 May 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 April 2013 / 5 years, 36 weeks b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10, IT Specialist / 4 years, 1 month, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (16 February 2015 - 26 October 2015 f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTEM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Colorado Springs Police Department Arrest Report reflects the applicant was taken into custody on 31 October 2016 for menacing a real or simulated weapon. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Confined by Civil Authorities (CCA),” effective 31 October 2016; From “CCA,” to “PDY,” effective 1 November 2016. District Court, El Paso County, CO, Complaint and Information Sheet, dated 8 November 2016 reflects the applicant was charged with menacing, first degree criminal trespass, two counts of prohibited use of a weapon, and disorderly conduct. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “PDY” to “CCA,” effective 20 December 2016; From “CCA” to “PDY,” effective 21 December 2016. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag) reflects the applicant was flagged for involuntary separation/field initiated effective 1 May 2017. i. Lost Time / Mode of Return: 3 days: CCA, 31 October 2016 - 1 November 2016 / Apprehended by Civil Authorities CCA, 20 December 2016 - 20 December 2016. This period is annotated on the DD Form 214 (Certificate of Release or Discharge from Active Duty), block 29, however two Personnel Action forms and a lost time listing reflects 20 December 2016 - 21 December 2016. j. Behavioral Health Condition(s): (1) Applicant provided: Pathways Psychological Services Progress Note, dated 18 January 2018, reflecting a diagnosis of major depressive disorder, recurrent severe without psych features and PTSD, unspecified. Logistics Health Incorporated Addendum Report, dated 24 August 2018, reflecting current VA exam shows a diagnosis of adjustment disorder with mixed anxiety and depressed mood. However, the previous exam showed a diagnosis of PTSD (for which Veteran is currently service connected). The change in diagnosis is due to an error in previous diagnosis. It is believed that the prior PTSD diagnosis was made in error due to most recent medication management note in records dated 28 February 2018, at which time provider stated that the applicant desired diagnosis of PTSD. Provider did not feel the applicant met criterion A for PTSD and instead gave diagnosis of adjustment disorder with anxiety. The applicant does not appear to be experiencing trauma-related symptoms and does not meet criteria for PTSD or another trauma disorder. There are also validity concerns with the applicant as the applicant appears motivated to obtain diagnosis of PTSD and is now stating that trauma from deployment to Kuwait during which the applicant was not exposed to any traumatic events, but merely heard about them, is causing emotional symptoms. VA disability rating decision, dated 20 November 2018, reflecting the applicant was rated 50 percent disability for adjustment disorder with mixed anxiety and depressed mood [PTSD - Combat /Fear - Easing Standard] effective 17 June 2017 and 11 June 2018. A licensed psychologist opinion, dated 3 April 2019, states it can be opined that the applicant’s records documented gross impairment across most areas of psychosocial functioning such as occupational, social/family, judgment, thinking and mood. Records documented depression, anxiety and poor sleep. The licensed psychologist further details rationale of the applicant’s records in the letter provided with the application. A letter from a licensed professional counselor, undated, states the applicant meets the criteria for PTSD in response to an event that happened while stationed in Kuwait in 2015 and after the event. The applicant learned of a car bomb which caused the base to go on high alert, exposing the applicant to extreme and repeated exposure to life threatening situations. The licensed professional counselor further details the applicant’s condition in the letter provided with the application. VA disability rating decision, dated 3 February 2020, reflecting the applicant’s current 50 percent disability rating for adjustment disorder with mixed anxiety and depressed mood was increased to 70 percent. VA disability rating decision for notice of disagreement letter, dated 16 April 2020, reflecting the applicant’s current 50 percent disability rating for adjustment disorder with mixed anxiety and depressed mood was increased to 70 percent effective 17 June 2017. Combined rating evaluation is 90 percent effective 8 February 2018. (2) AMHRR Listed: Report of Mental Status Evaluation (MSE), dated 27 April 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for TBI with negative results. The applicant was also screened for PTSD with positive results; however, clinical interview and impression did not support this diagnosis. The applicant did not meet criteria required for a behavioral health chapter under AR 635-200. The applicant was diagnosed with: Z02.9 Encounter for Administrative Examination, Unspecified; Z65.9 Problem Related to Unspecified Psychosocial Circumstances. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; VA Form 21-0960P-3 (Review PTSD Disability Benefits Questionnaire); Licensed Professional Counselor Letter; Licensed Psychologist Opinion; Two VA Rating Decision Letters; Hagel and Kurta Memoranda; VA Claim File with medical records; third-party 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 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. 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, states 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, through counsel, requests an upgrade to honorable. The applicant’s Army Military Human Resource Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. Counsel contends, in effect, the applicant’s diagnosis by the VA for an adjustment disorder with mixed anxiety and depressed mood explains the cause of the criminal weapon charge. The applicant provided several medical documents indicating a diagnosis of adjustment disorder with anxiety, and prescribed medication. The AMHRR shows the applicant underwent a MSE on 27 April 2017, which indicates the applicant recognized right from wrong. The MSE reflects a diagnosis of Z02.9 Encounter for Administrative Examination, Unspecified and Z65.9 Problem Related to Unspecified Psychosocial Circumstances. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of the applicant’s discharge processing. The applicant contends, in effect, carrying a weapon was due to paranoia and fear, which are symptoms of the service-connected mental health condition, which resulted from service in the Middle East. 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 record confirms the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. The applicant contends, in effect, the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends, in effect, treatment for a mental health condition was not properly provided. The AMHRR shows the applicant underwent a MSE on 27 April 2017, which indicates the applicant recognized right from wrong. The third-party statement provided with the application speaks highly of the applicant’s character while serving in the Army. 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: Adjustment Disorder with additional diagnosis of Generalized Anxiety Disorder (GAD) and ongoing assessment for Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant did not hold an in-service diagnosis, rather subthreshold adjustment difficulties; symptoms presented in reaction to psychosocial stressors. While the applicant asserts PTSD and submitted a non-VA provider's PTSD diagnosis, the VA has consistently found the diagnosis in error with supporting justification and concurrence by the Board’s Medical Advisor. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant's Adjustment Disorder is not mitigating as the diagnosis is a reaction to psychosocial stressors not rising to the level of cognitive impairment impacting decision-making capabilities. While the applicant has asserted PTSD led to the misconduct, the diagnosis has repeatedly been refuted by the VA with strong documentation and substantiation for maintaining the Adjustment Disorder. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder outweighed the misconduct of menacing, first degree criminal trespass, two counts of prohibited use of a weapon, and disorderly conduct for the aforementioned reasons. b. Response to Contention(s): (1) Counsel contends, in effect, the applicant’s diagnosis by the VA for an adjustment disorder with mixed anxiety and depressed mood explains the cause of the criminal weapon charge and treatment for a mental health condition was not properly provided. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that the primary conditions asserted by the applicant and counsel have been refuted by the VA with strong documentation and substantiation for maintaining the Adjustment Disorder only, which is not mitigating due to the violent nature of the applicant’s offenses. (2) The applicant contends, in effect, carrying a weapon was due to paranoia and fear, which are symptoms of the service-connected mental health condition, which resulted from service in the Middle East. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered this contention and determined that the primary conditions asserted by the applicant and counsel have been refuted by the VA with strong documentation and substantiation for maintaining the Adjustment Disorder only, which is not mitigating due to the violent nature of the applicant’s offenses. (3) The applicant contends, in effect, the event that caused his discharge from the Army was an isolated incident. The Board considered this contention and determined that the isolated incident was serious enough to warrant discharge after only one offense, and relief to the discharge is not warranted. 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 contentions that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment Disorder with additional diagnosis of Generalized Anxiety Disorder (GAD) and ongoing assessment for Personality Disorder and noted but VA-refuted PTSD did not excuse or mitigate the offenses of menacing, first degree criminal trespass, two counts of prohibited use of a weapon, and disorderly conduct for the reasons listed in section 9a(3), above. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 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 AR20200008795 1