1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 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, in July 2011, the applicant was charged with altering the applicant's military identification card and entering a premises where alcoholic beverages were served. The applicant issued a statement to Sergeant First Class (SFC) G., the applicant's noncommissioned officer (NCO), who understood why the applicant did it. The applicant provides a statement with the application regarding the issue. The applicant served the punishment, and it was the applicant's last issue until 22 February 2012. As a paralegal, the applicant was assigned to the brigade legal office and then the paralegals were moved to the battalions. The applicant was the only paralegal required by the battalion to be assigned to the S-1 section. The applicant had to follow the orders of multiple NCOs. On 22 February 2012, the applicant was sick and took NyQuil before bed. The applicant forgot to set an alarm and missed physical training (PT) formation. The applicant served the punishment and admitted to being wrong. On 14 March 2012, the applicant completed the plan of action. The applicant was accused of not being in formation on 16 May 2012, for which the applicant was recovering from an injury the applicant received while at Combative Level 3 training. While at the Joint Readiness Training Center (JRTC), the applicant placed the Individual Body Armor (IBA) and Advanced Combat Helmet (ACH) in the applicant's rucksack and because of the applicant's injuries, a Soldier helped the applicant place the items in the CONEX. The applicant was not aware the unit was given an order not to place the IBA and ACH in the CONEX because the applicant was in Combative training when the unit was given the order. While on profile, the applicant was forced to carry the IBA and ACH everywhere the applicant went. The last counseling the applicant received was an attack by another E-5 in the applicant's office, Sergeant (SGT) L. The applicant further described two incidents, involving SGT L. counseling the applicant, and recommending action under the Uniform Code of Military Justice (UCMJ) against the applicant for failing to report. Sergeant H. was the applicant's supervisor and the applicant informed SGT H. of the applicant's whereabouts, the applicant's sleep issues, and the medication, which was prescribed to help the applicant sleep, causing drowsiness. The applicant believes the applicant was not allowed to show the applicant had rehabilitated because four of the six charges in the applicant's packet were within 30 days of each other. At the time, the applicant was undergoing psychiatric help as well as other issues. When the applicant tried to get help, the applicant did not receive any assistance from the applicant's NCOs, except for SGT H. The applicant was supervised by three NCOS and the applicant could not keep up with everything they told the applicant. The applicant's NCO and officer both wrote letters stating the applicant's behavior in the last month was inconsistent with the applicant's behavior in the past year and the applicant had rehabilitation potential. b. Board Type and Decision: In a records review conducted on 24 October 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's diagnosis of Anxiety NOS, Panic Disorder with Agoraphobia, and Bipolar II Disorder that mitigate the FTR misconduct. The remaining, unmitigated misconduct, altering a military ID and disobedience, is outweighed by the applicant's length and quality of service and length of time since the discharge. Therefore, 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 reentry eligibility (RE) code was proper and equitable and voted not to change. 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 6 April 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 January 2013 (2) Basis for Separation: The applicant was informed of the following reasons: On four occasions, the applicant failed to be at the appointed place of duty. On 4 July 2011, the applicant altered the military identification card and entered a premises where alcoholic beverages were sold, while under the age of 21; and Between 29 May and 6 June 2012, the applicant failed to obey an order by Sergeant C. H., who was the applicant's team leader at the time of the order, to carry the applicant's IBA and ACH everywhere the applicant went other than the dining facility from the hours of 0630 to close the business. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 30 January 2013 / The applicant's Army Military Human Resource Record (AMHRR) contains rebuttal documents to the separation proceedings, including a self-authored statement and two third-party statements. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 July 2010 / 3 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 110 Highest Grade Achieved / MOS / Total Service: E-3 / 27D10, Paralegal Specialist / 3 years, 3 months, 14 days / The applicant's DD Form 214 included inactive duty time in the Delayed Entry Program (DEP): 7 months, 4 days. c. Prior Service / Characterizations: None d. Overseas Service / Combat Service: Alaska / None e. Awards and Decorations: AAM, NDSM, GWOTSM, ASR f. Performance Ratings: NA g. Disciplinary Action(s) / Evidentiary Record: Municipality of Anchorage Police Department Arrest Report, 4 July 2011, reflects the applicant was arrested for being a minor on alcohol premises and having false identification. Investigation revealed the applicant attempted to gain entry to the club by using the military identification card (ID), which the applicant attempted to change the birth year. The card was seized, and the police officer observed the ID card clearly read a birth year, which made the applicant 19 years old. Company Grade Article 15, 7 September 2012, for on three occasions, failing to go at the time prescribed to the appointed place of duty, to wit: 1400 hours work call (6 June 2012); 0630 accountability formation (22 February and 16 May 2012); and willfully disobeying a lawful order from Sergeant C. H. (between 29 May and 28 June 2012). The punishment consisted of extra duty and restriction for 14 days. Numerous Developmental Counseling Forms, for, but not limited to: Failing to follow instruction, Failing to report on numerous occasions, Disrespect to a noncommissioned officer (NCO), and Failing to follow plan of action to carry IBA and ACH. h. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Report of Mental Status Evaluation, 24 January 2013, reflects the applicant was cleared for chapter action, but the psychiatrist recommended the applicant follow-up with Behavioral Health before the discharge and additional mental health services, as needed, after discharge. 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 post-traumatic stress disorder (PTSD) and mild traumatic brain injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with anxiety disorder, not otherwise specified (NOS); panic disorder; insomnia; and occupational problem. (2) AMHRR Listed: MSE as described in previous paragraph 4j (1). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Report of Mental Status Evaluation; Report of Medical Examination; Report of Medical Assessment; and Report of Medical History. 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 (Active Duty Enlisted Administrative Separations) 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. 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 being diagnosed with in-service mental health conditions and the conditions affected behavior which led to the discharge. The applicant provided the Report of Mental Status Evaluation (MSE), which shows the applicant underwent a mental status evaluation on 24 January 2013, which indicates the applicant could appreciate the difference between right and wrong and met medical retention requirements. The applicant was screened for PTSD and mTBI with negative results. The applicant was diagnosed with anxiety disorder, NOS; panic disorder; insomnia; and occupational problem. The applicant's AMHRR contains the MSE, provided by the applicant and was considered by the separation authority. The applicant contends harassment by a member of the unit. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends not being provided the opportunity to show the applicant was rehabilitated. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. The applicant contends there was only one NCO who attempted to help the applicant with the mental health and other issues. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The third-party statements provided by the applicant at the time of separation speak highly of the applicant. They all recognize the applicant's good military service. 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: Unspecified Anxiety Disorder (aka Anxiety Disorder NOS), Unspecified Depressive Disorder, Bipolar Disorder, Panic Disorder with Agoraphobia. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed with Unspecified Anxiety Disorder and Panic Disorder with Agoraphobia during service. (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 does not have a service-connected disability but has potentially mitigating diagnosis of Anxiety NOS, Panic Disorder with Agoraphobia, Bipolar II Disorder, Insomnia. Given the applicant's documented history of sleep related problems and diagnosis of Insomnia, and his reports that his FTR were related to oversleeping, there is a nexus between his misconduct characterized by FTR and Insomnia, such that the conduct is mitigated. However, the applicant's misconduct characterized by attempting to alter the birthdate on his military ID card to gain access to a club and disobeying direct orders is not mitigated by Insomnia or Anxiety Disorder, as neither rendered him unable to differentiate between right and wrong and adhere to the right. Regarding the applicant potentially mitigating diagnosis of Bipolar Disorder, despite his self-report to a VA provider of being diagnosed with Bipolar Disorder in July 2012, while on active duty, there is no evidence in AHLTA to support his self-report. It appears the initial VA provider's diagnosis was influenced largely by the applicant reported history of being diagnosed while in service and not based on actual symptoms. This position is also supported by the psychiatrist who provided care for the applicant in 2019 who found it unlikely that the applicant met criteria for Bipolar Disorder in 2019 or previously. (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 Insomnia and Anxiety Disorder did not mitigate or out weighted the applicant's misconduct - attempting to alter the birthdate on the applicant's military ID card to gain access to a club and disobeying direct orders as these conditions do not affect one's ability to distinguish right from wrong and act in accordance with the right. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The Board considered this contention and voted to upgrade the characterization of service to Honorable and change the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN because based on the applicant's diagnosis of Anxiety NOS, Panic Disorder with Agoraphobia, and Bipolar II Disorder that mitigate the FTR misconduct. The remaining, unmitigated misconduct, altering a military ID and disobedience, is outweighed by the applicant's length and quality of service and length of time since the discharge. (2) The applicant contends being diagnosed with in-service mental health conditions and the conditions affected behavior which led to the discharge. The Board considered this contention and found that the applicant was diagnosed with in service anxiety disorder, NOS; panic disorder; insomnia; and occupational problem. The board voted to update the applicant request as outline above in paragraph 9a (3-4) and 9b (1). (3) The applicant contends harassment by a member of the unit. The Board considered this contention and the applicant's assertion of harassment, however the Board determined that there is no evidence available or presented by the applicant of the command acting in an arbitrary or capricious manner other than the applicant's statement. Nevertheless, the Board voted that partial relief was warranted based on other circumstances as outlined above in paragraph 9a (3-4) and 9b (1). (4) The applicant contends not being provided the opportunity to show the applicant was rehabilitated. The Board considered this contention during proceedings and found the applicant underwent a mental status evaluation on 24 January 2013, which indicates the applicant could appreciate the difference between right and wrong and met medical retention requirements. Nevertheless, the Board voted that partial relief was warranted based on other circumstances as outlined above in paragraph 9a (3-4) and 9b (1). (5) The applicant contends there was only one NCO who attempted to help the applicant with the mental health and other issues. The Board considered this contention non-persuasive during its deliberations because as outlined above in paragraph 9a (3-4) and 9b (1). (6) The applicant contends good service. The Board considered this contention non- persuasive during its deliberations because as outlined above in paragraph 9a (3-4) and 9b (1). c. The Board determined the discharge is inequitable based on the applicant's diagnosis of Anxiety NOS, Panic Disorder with Agoraphobia, and Bipolar II Disorder that mitigate the FTR misconduct. The remaining, unmitigated misconduct, altering a military ID and disobedience, is outweighed by the applicant's length and quality of service and length of time since the discharge. Accordingly, the Board voted to grant relief in the form of an upgrade to 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 reentry eligibility (RE) code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because based on the applicant's diagnosis of Anxiety NOS, Panic Disorder with Agoraphobia, and Bipolar II Disorder that mitigate the FTR misconduct. The remaining, unmitigated misconduct, altering a military ID and disobedience, is outweighed by the applicant's length and quality of service and length of time since the discharge. 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 AR20210001508 1