1. Applicant's Name: a. Application Date: 13 July 2020 b. Date Received: 17 July 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, (under honorable conditions). The applicant requests an upgrade to honorable and a change of the narrative reason for separation and the separation program designator (SPD) code. The applicant seeks relief contending, in effect, his misconduct was an isolated incident based on personal issues. His combat experiences and post-traumatic stress disorder (PTSD) altered his behavior. He is currently using the GI Bill and would be required to pay back $15,000.00 if his discharge is not upgraded. In a records review conducted on 29 September 2021, 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: Unacceptable Conduct / AR 600-8-24, Chapter 4-2B / JNC / NA / General (Under Honorable Conditions) b. Date of Discharge: 27 February 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Board of Inquiry (BOI): NIF; The DASA Review Board Decision, dated 12 February 2020, reflects on15 May 2019, a Board of Inquiry recommended the applicant be involuntarily eliminated from the United States Army based on misconduct and moral or professional dereliction, and derogatory information, with a General (Under Honorable Conditions) characterization of service. (4) Legal Consultation Date: NIF (5) GOSA Recommendation Date / Characterization: NIF (6) DASA Review Board Decision Date / Characterization: 12 February 2020 / General, under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Appointment: 18 December 2010 / Indefinite b. Age at Appointment / Education: 22 / Bachelor's Degree c. Highest Grade Achieved / MOS / Total Service: O-3 / 11A, Infantry / 9 years, 1 month, 26 days d. Prior Service / Characterizations: ARNG, 29 June 2007 - 17 December 2010 / HD RA, 7 May 2008 - 22 August 2008 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Afghanistan, 28 January 2013 - 18 October 2013 and 19 January 2017 - 13 May 2018 f. Awards and Decorations: ARCOM-3, AAM, MUC, NDSM, GWOTSM, ACM CS-2, ASR, OSR, NATO Medal, CIB, EIB, Parachutist Badge, Air Assault Badge g. Performance Ratings: 28 July 2014 - 6 May 2016 / Highly Qualified 7 May 2016 - 6 October 2016 / Highly Qualified 7 October 2016 - 24 March 2017 / Highly Qualified 25 March 2017 - 30 April 2018 / Not Qualified 1 May 2018 - 17 October 2018 / Highly Qualified 18 October 2018 - 20 May 2019 / Qualified h. Disciplinary Action(s) / Evidentiary Record: GOMOR, dated 28 April 2018, reflects the applicant was reprimanded for unlawfully harassing, maltreating, and bullying his subordinates, fostering an overall toxic command climate, demonstrating disrespect toward a General Officer, and an integrity violation. The applicant called a 1LT a "chai boy," he called a homosexual Soldier a "faggot," "twink," and "spoof," he referred to a Soldier of Moroccan decent as a "goat fucker," he disparaging referred to Afghans as "Hadj," and "Hadji," and he called a female General Officer a "bull dyke." During a sensing session, it was discovered that he had also touched two of his Soldiers without their consent. When a 1LT told him he would report his conduct, he threatened to have him removed from his position. Finally, the applicant improperly used his authority as Commander to have private height and weight screenings after failing the public screenings. Through his actions, the applicant demonstrated a flagrant disregard for the Army Equal Opportunity policy, Army Command Policy, and the Army Physical Fitness Program. The applicant conduct showed a lack of respect for the Army, his leadership, and the Soldiers whom he was entrusted to lead, teach, and mentor. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides medical records, dated 9 January 2919, reflecting the applicant was diagnosed with unspecified trauma and stressor related disorder and unspecified depressive disorder. The applicant also provides a VA Rating Decision, dated 23 June 2020, which reflects the applicant was granted service connection for Other specified trauma and stressor related disorder with an evaluation of 30 percent effective 28 February 2020. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, College Transcripts, Department of Veteran Affairs Rating Decision, dated 23 June 2020, DD Form 214, Letters of Suppport-3, Medical documents 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. Army Regulation 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions characterization of service may be granted. 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 "JNC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and a change of the narrative reason for separation and the SPD code. The applicant contends his misconduct was an isolated incident based on personal issues. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. The applicant further contends his combat experiences and PTSD altered his behavior. 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 his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. The applicant also contends he is currently using the GI Bill and would be required to pay back $15,000.00 if his discharge is not upgraded. The Board does not grant relief for the purpose of making an applicant eligible for veteran benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant request his narrative reason and SPD code be changed. However, the applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "JNC." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 DoD and VA medical records and found the applicant was diagnosed with in-service Adjustment Disorder, Problems Related to Employment and Neuroses by the military, which, in the opinion of the Board's Medical Advisor, a voting member, could potentially mitigate the misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder and Problems Related to Employment. While the applicant submitted a VA rating letter reflecting Other Specified Trauma and Stressor Related Disorder, the applicant's in-service documentation does not support this as present in-service. Of note, the applicant's basis for separation indicate he was the perpetrator of MST. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, Other Specified Trauma and Stressor Related Disorder does not mitigate the basis for separation as the misconduct reflects behaviors not uncharacteristic of the individual, could be recalled and discussed in a coherent manner, did not recreate elements of a trauma, reflect an attempt to avoid detection indicating knowledge his acts were inappropriate, and victims were deliberately chosen based on various factors to include ethnicity, gender, sexual orientation, power and control, etc. These elements do not align with trauma based misconduct. Accordingly, there is no medical mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's perpetrated MST and moral/professional dereliction of duty outweighed the applicant's Adjustment disorder and Neuroses for the reasons listed in (3) above. b. Response to Contentions: (1) The applicant requests an upgrade to honorable and a change of the narrative reason for separation and the SPD code. The Board denied the applicant's upgrade request due to the egregious non-medically mitigated offenses, including MST perpetrator. (2) The applicant further contends his combat experiences and PTSD altered his behavior. 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 his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. There is also no PTSD evidence in the available records or provided by the applicant. (3) The applicant also contends he is currently using the GI Bill and would be required to pay back $15,000.00 if his discharge is not upgraded. The Board does not grant relief for the purpose of making an applicant eligible for veteran benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant did not support a finding that the applicant's discharge was improper or inequitable. 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 voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's in-service diagnoses of Adjustment Disorder and Problems Related to Employment and Neuroses did not mitigate the offenses of unlawfully harassing, maltreating and bullying subordinates, fostering a toxic command climate; showing disregard for Army EO, Command Policy and APFT Programs. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200008833 5