1. Applicant’s Name: a. Application Date: 26 October 2020 a. Date Received: 20 November 2020 b. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant’s counsel requests an upgrade to honorable and a change of the narrative reason for discharge. The applicant’s counsel seeks relief contending, in pertinent part and in effect, the applicant requests liberal consideration as the applicant suffered from PTSD and depression immediately following return from combat tours in Iraq in 2005 and Afghanistan in 2007. The applicant reached a breaking point in 2010 and began lashing out. The applicant’s behavior was directly caused by post-traumatic stress disorder (PTSD) and depression. Despite dedicated service and back-to-back combat tours, the command discharged the applicant. The current discharge stands in the way of reaching full potential and granting relief would provide the applicant with a more successful life. The applicant has been hospitalized on several occasions based on mental ailments. The applicant continues to suffer from PTSD. In a telephonic personal appearance hearing conducted on 7 June 2021, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: 3 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 October 2010 (2) Basis for Separation: The applicant was informed of the following reasons: Between 15 July 2010 and 15 August 2010, the applicant wrongfully communicated to Dr. G.R. threats to cause bodily harm to the said Dr. R. He received an Article 15 for this misconduct on 24 September 2010 and between 1 August 2010 and 30 August 2010, he wrongfully communicated to Ms. S.M., threats to cause bodily harm to the said Ms. M. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 28 October 2010, requested conditional waiver (5) Administrative Separation Board: Conditionally waived, contingent upon receiving no less than a general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 18 November 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 June 2010 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 34 / Bachelor of Science Degree / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21B, Combat Engineer / 14 years, 2 months, 24 days d. Prior Service / Characterizations: USN (30 October 1995 to 11 August 1999) / HD * USNR (12 August 1999 to 29 October 2003) / NA * Unknown Status (30 October 2003 to 30 March 2004) / NA * (Enlistment) ARNG (31 March 2004 to 15 August 2004) / NA * (DD Form 214) OIF MOB (16 August 2004 to 24 April 2005) / HD * (DD Form 214) ARNG (25 April 2005 to 30 September 2005) /HD * ARNG (1 October 2005 to 21 November 2005) / NA * (NGB Form 22E) ARNG (22 November 2005 to 16 February 2006) / NA * (DD Form 214) OEF MOB (17 February 2006 to 12 March 2007) / HD * (Continued NGB Form 22E) ARNG (13 March 2007 to 30 March 2008) / HD * Unknown Status (31 March 2008 to 28 May 2008) / NA * (29 May 2008 DA Form 4187 / Enlistment) ARNG * (29 May 2008 to 8 June 2010) / HD e. Overseas Service / Combat Service: SWA / Iraq (15 October 2003 to 31 March 2005), Afghanistan (19 April 2006 to 18 February 2007) f. Awards and Decorations: NCGM; NDSM-BS; NDSM; ACM-2CS; GWOTEM; GWOTSM; ASR; OSR; AFRM-M DEV; NSSDR; NATO MDL; NMUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 30 August 2010, indicates the applicant was the subject of an investigation for communicating a threat by mail. CG Article 15, dated 24 September 2010, for communicating a threat to Dr. G.A.R. by mail between 31 July 2010 and 3 August 2010. The punishment consisted for reduction to E-3, forfeiture of $448, 14 days of extra duty and restriction, and an oral reprimand. Counseling statement for being recommended for an involuntary separation. i. Lost Time / Mode of Return: 24 days (Civil Confinement on 10 November 2010 through 3 December 2010) / The applicant was separated from military service on 3 December 2010. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 19 October 2010, indicates the applicant and examiner noted behavioral health issues. Report of Mental Status Evaluation, dated 19 October 2010, indicates an “Axis I” diagnosis of “Major Depression, recurrent.” The report further indicated the applicant was cleared for any administrative action deemed appropriate by his command. Two memoranda, dated 4 November 2010 and 20 August 2010, rendered by Medical Doctor for an Inpatient Psychiatry, indicate the applicant was hospitalized for diagnosis of “Axis I: Major depression, recurrent,” and the latter certifies an evaluation and diagnosis, respectively. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, counsel-authored brief; DD Form 214-3, College Diploma, Orders 217-397, Orders 027-357, Orders 053-0026, Memo, Regrading psychiatric…, Letter from VA, Process Notes. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s counsel contends that the applicant suffered from depression and PTSD. The applicant’s record does in fact contain documents which indicate the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed. The applicant’s counsel requests a change of the narrative reason for separation. The record shows the applicant was discharged under the provision of AR 635-200, chapter 14-2c, due to misconduct (serious offense). AR 635-5-1 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). 8. 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 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JKQ” will be assigned an RE Code of “3.” 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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) Per the Medical Advisor, a voting member of the ADRB, medical records show that the applicant held an in-service diagnosis of MDD and Anxiety Disorder with one inpatient stay with psychological testing affirming the MDD diagnosis and culpability for his actions. Post-service, the applicant is service connected for PTSD; however, treating providers note an absence of trauma symptoms. Rather, he is treated for MDD. (2) Did the condition exist or experience occur during military service? (YES) VA medical records indicate that the applicant’s PTSD is combat-related. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) The Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the applicant’s PTSD and MDD do not mitigate the offenses that resulted in the applicant’s discharge. The applicant, knowing that it was illegal, sent threats of bodily harm to multiple individuals. The offenses were not spontaneous or unpremeditated, choice of victim was not accidental or by chance, and length of contact involved careful planning, persistence, and rationalization. (4) Does the condition or experience outweigh the discharge? (NO) The Board concurred with the opinion of the Board’s Medical Advisor that the applicant’s diagnosis of PTSD is not mitigating for the threatening letters, personal misconduct, and subsequent charges of a terroristic nature. The ADRB found that the applicant’s misconduct was premeditated, that the applicant’s choice of victims was intentional, and the span of time over which the misconduct occurred involved careful planning, persistence and rationalization. The Board, applying liberal consideration, determined the applicant’s PTSD and other BH diagnoses do not outweigh the misconduct that resulted in the General (Under Honorable Conditions) discharge. b. The applicant and counsel contend that the applicant’s actions were directly linked to PTSD. The ADRB concurred with the opinion of the Board’s Medical Advisor that the applicant’s actions were not spontaneous or unpremeditated, choice of victim was not accidental or chance, reflected motivation and rationalization, did not relate to his traumatic event or stressor suggesting a re-enactment, and the applicant could coherently speak of the events prior to, during, and after. Even after applying liberal consideration, the ADRB found the applicant’s misconduct is not mitigated by PTSD or MDD and the BH conditions, to include PTSD, do not outweigh the discharge. c. The Board determined that the separation was both proper and equitable. d. Rationale for Decision: (1) Even after applying liberal consideration, the ADRB decided that the applicant’s premeditated misconduct required planning, persistence, and rationalization and is not mitigated by PTSD or MDD. (2) The Board voted not to change the reason for discharge because the applicant’s premeditated misconduct required planning, persistence, and rationalization and is out outweighed by PTSD or MDD. (3) Because the characterization and reason were not changed, the SPD/RE code will not change. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to:No Change e. Change SPD / RE Code to: No Change Authenticating Official: Invalid signature Presiding Officer, COL, U.S. ARMY Army Discharge Review Board Signed by: COLBERT.ROLANDA.DELRESA.1064869872 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 NA - Not applicable NCO – Noncommissioned Officer NIF - Not in File NOS – Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE - Reentry 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