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 honorable. The applicant requests a change to the narrative reason. The applicant seeks relief contending, in effect, because of not meeting the tape and being overweight, the applicant was discharged from the Army. While the applicant was deployed, the applicant met the tape, but when the applicant returned from deployment, the applicant was on profile because of issues with the applicant’s knee and shins. The applicant failed the tape. An upgrade would allow the applicant to receive the educational benefits and to become a productive person. b. Board Type and Decision: In a records review conducted on 31 October 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / Honorable b. Date of Discharge: 8 September 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 August 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 19 September 2008, the applicant received a Company Grade Article 15 for being disrespectful in language and deportment towards a noncommissioned officer (NCO) and for disobeying a lawful order from an NCO. On 24 June 2010, the applicant received a Company Grade Article 15 for five specifications of failing to go to the appointed place of duty, and two specifications of disobeying a lawful order from an NCO. The applicant received numerous counseling for misconduct prejudicial to good order and discipline. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 17 August 2010, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 August 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 March 2007 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 112 c. Highest Grade Achieved / MOS / Total Service: E-2 / 89B10, Ammunition Specialist / 3 years, 5 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (5 November 2008-19 October 2009) f. Awards and Decorations: ICM-2CS, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Physical Profile, 18 April 2008, reflects the applicant had shin splints and was limited to no running, jumping, marching, squatting, kneeling, or sports. Company Grade Article 15, 19 September 2008, for being disrespectful and language and deportment towards Sergeant (SGT) K. E., an NCO (23 August 2008), and disobeying a lawful order from SGT K. E. to go to the barracks because of being in an intoxicated state and lacking self-control (23 August 2008). The punishment consisted of a reduction to E-1 (suspended); forfeiture of $314 pay (suspended); extra duty and restriction for 14 days; and an oral reprimand. Memorandum, subject: Weight Control Program, 9 March 2010, reflects, the applicant was determined to be medically cleared to participate in the weight control and exercise program. Memorandum, subject: Weight Control Program, 10 March 2010, reflects the applicant exceeded the body fat standard, was flagged, and entered in the weight control program. Electronic Copy of DD Form 2624, 21 April 2010, reflects the applicant tested positive for THC 146 (marijuana), during an Inspection Random (IR) urinalysis testing, conducted on 9 April 2010. Electronic Copy of DD Form 2624, 22 April 2010, reflects the applicant tested positive for THC 112 (marijuana), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 15 April 2010. Electronic Copy of DD Form 2624, 14 May 2010, reflects the applicant tested positive for THC 33 (marijuana), during a Rehabilitation Testing (RO) urinalysis testing, conducted on 7 May 2010. Company Grade Article 15, 24 June 2010, for: On four occasions, failing to go at the time prescribed to the appointed place of duty (3, 16 and 18 March 2010 and 6 May 2010); On divers occasions, going from appointed place of duty (between 1 and 3 June 2010); and On two occasions, willfully disobeying a lawful order from SGT D. S., an NCO (26 and 27 May 2010. The punishment consisted of a reduction to E-1; forfeiture of $337 pay; and extra duty and restriction for 14 days. Numerous Developmental Counseling Forms, for but not limited to: Disrespect to an NCO on divers occasions, Failure to obey order or regulation, Drunk and Disorderly, Failure to report on divers occasions, Non-payment of debt, Marginal duty performance, Dereliction of duties, Enrollment in the Army Weight Control Program, Loss and damage of government equipment, and Several positive monthly counseling. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, 30 July 2010, 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 was diagnosed with adjustment disorder, with anxiety and depression; alcohol dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293. 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 600-85, (The Army Substance Abuse Program), paragraph 10-12a defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to “Honorable” if protected evidence is used. Protected evidence under this policy includes the results of a drug or alcohol test administered solely as a required part of a DoD or Army SUD treatment program. e. 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) 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. (4) 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. (5) 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. f. 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. g. 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 a change to the narrative reason. The applicant’s separation packet includes three electronic DD Forms 2624 (Specimen Custody Document for Drug Testing), which show two of the urinalysis tests coded “RO,” which indicates “Rehabilitation Testing.” The government introduced these documents into the discharge process and the documents are limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge; however, the current characterization of service for the period under review is honorable. The applicant contends because of not meeting the tape and being overweight, the applicant was discharged from the Army. The applicant’s AMHRR reflects the applicant was enrolled in the Army overweight program, but the reason for discharge reflects the applicant received two Company Grade Article 15s for misconduct and had numerous counselings. The record does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade would allow educational benefits through the GI Bill. 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. 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: Post Traumatic Stress Disorder, Anxiety Disorder, Bipolar Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is 70 percent SC for PTSD related to combat. (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 behavioral health conditions partially mitigate the applicant’s pattern of misconduct. As there is an association between PTSD and comorbid substance use, there is a nexus between the applicant’s wrongful use of marijuana and the incident whereby the applicant was disrespectful in language and deportment and disobeyed a direct order, given the applicant was in an inebriated state during the time of the incident. As there is an association between PTSD and avoidant behavior, there is a nexus between the applicant’s FTR and PTSD. However, the misconduct characterized by failure to obey an order or regulation and nonpayment of debt would not be mitigated by PTSD and the other potentially mitigating diagnosis as there is no evidence that either rendered the applicant unable to differentiate between right and wrong and adhere to the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Post Traumatic Stress Disorder, Anxiety Disorder, Bipolar Disorder outweighed the medically unmitigated offenses of failures to obey a lawful order and failure to pay debts. b. Response to Contention(s): (1) The applicant contends because of not meeting the tape and being overweight, the applicant was discharged from the Army. The Board considered this contention but found that the available evidence shows the applicant was properly and equitably separated for a pattern of misconduct, even after accounting for medically mitigated of the applicant’s illegal drug use offense and the associated disrespect and disobeying a lawful order offense. Therefore, further discharge upgrade is not warranted. (2) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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 determined that the discharge is, at this time, proper and equitable, in light of 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 contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board determined the discharge is proper and equitable as a prior ADRB upgraded the discharge with a characterization of Honorable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code 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 AR20210001515 1