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, the discharge was improper because the command used the previous discharge to separate the applicant rather than assisting with the stress of family, war, and the death of a foreign family and battle comrades. The evidence demonstrates a complete disconnect between the applicant and the command. The Department of Veterans Affairs’ documents will help to justify the upgrade request. b. Board Type and Decision: In a records review conducted on 20 July 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, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 November 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 September 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received a Field Grade Article 15 for committing one count of driving while under the influence of alcohol, one count of assault and battery, and one count of child endangerment, and the applicant continues to show up late to formations and has displayed, at various times, disrespect to noncommissioned officers. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 September 2009 (5) Administrative Separation Board: On 8 October 2009, the administrative separation board convened, and the applicant appeared with counsel. The Board determined sufficient evidence supported the applicant met the criteria for separation under AR 625-200, paragraph 14-12b, for pattern of misconduct. The board recommended the applicant’s discharge with characterization of service of general (under honorable conditions). (6) Separation Decision Date / Characterization: 21 October 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 April 2008 / 4 years b. Age at Enlistment / Education / GT Score: 25 / High School Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 6 years, 5 months, 9 days d. Prior Service / Characterizations: USAR, 24 June 2000 – 6 September 2000 / NA RA, 7 September 2000 – 18 December 2002 / GD (Break in Service) ARNG, 15 September 2005 – 2 April 2008 / NIF e. Overseas Service / Combat Service: Germany, SWA / Iraq (2 December 2008 – 12 May 2009) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Six Developmental Counseling Forms for various acts of misconduct. CG Article 15, dated 13 January 2009, for unlawfully striking PV2 A. A. in the face with the fist on 9 November 2008. The punishment consisted of a reduction to E-3 (suspended), and extra duty and restriction for 14 days. Military Police Report, dated 15 May 2009, reflects the applicant was apprehended for: simple assault (on post); child endangerment (on post); and drunk driving. Record Of Supplementary Action Under Article 15, UCMJ, dated 22 May 2009, reflects the suspended portion of the punishment imposed on 13 January 2009, was vacated for violation of Article 128, UCMJ, by unlawfully putting spouse in a choke hold on 13 May 2009. FG Article 15, dated 9 September 2009, for operating a vehicle while intoxicated, assaulting the spouse, and causing child endangerment on 13 May 2009. The punishment consisted of a reduction to E-1; forfeiture of $679 pay per month for two months; and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Behavioral Health Memorandum, dated 1 September 2009, rendered by a psychiatrist with the Schweinfurt Health Clinic, indicated the applicant was being treated for a major depression with antidepressant medication and engaged in treatment at ASAP. Tampa VAMC medical record of 10 November 2014 reflects the applicant had been diagnosed and was being treated for schizophrenia, GAD, MDD, and PTSD, and had six hospitalizations for HI and SI in the past. Veterans Administration Disability rating decision on VA benefits, dated 24 July 2015, reflecting the applicant was rated 70 percent disability for PTSD with cannabis use disorder and alcohol use disorder. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 23 June 2009, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant had the capacity to understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. There was no evidence of PTSD or TBI. The applicant had a Major Depressive Disorder, single episode, moderate, and was prescribed antidepressant medication. Report of Medical Examination, dated 20 July 2009, the examining medical physician noted in the summary of diagnoses section: Depression, Insomnia, and Anger. The applicant was recommended to continue with Mental/Behavioral Health, Social Work, and Chaplain. Report of Medical History, dated 20 July 2009, the applicant noted behavioral health issues and the examining medical physician noted in the comments section: being treated at Mental/Behavioral Health, social work, and chaplain for Major Depression, self-referred to ASAP, and seen for insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed attachments and DD Form 214. Additional Evidence: Behavioral Health 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 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, 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: A Soldier’s self-referral to BH for SUD treatment; Admissions and other information concerning alcohol or other drug abuse or possession of drugs incidental to personal use occurring prior to the date of initial referral to treatment and provided by Soldiers as part of their initial entry into SUD treatment; Drug or alcohol test results, if the Soldier voluntarily submits to a DoD or Army SUD treatment before the Soldier has received an order to submit for a lawful drug or alcohol test; and, 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 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. 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 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 the discharge was improper because the command used the former discharge to separate the applicant. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being discharged without the help of the chain of command with the stress from family, war, and death of a foreign family and battle buddies, and the evidence shows there was a disconnect between the applicant and the command. 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 punishments. The applicant contends documentary evidence showing the disability rating for PTSD and treatment by the VA justifies the request for an upgrade. The applicant provided several medical documents indicating diagnoses of major depression, schizophrenia, GAD, MDD, and PTSD, and prescribed medication. The applicant’s AMHRR contains documentation which supports diagnoses of in-service depression, insomnia, and anger. The record shows the applicant underwent a mental status evaluation (MSE) on 23 July 2009, which indicates the applicant had the capacity to understand and participate in administrative proceeding and was mentally responsible. The MSE was considered by the separation authority. 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: PTSD, Major Depression, Schizophrenia, Generalized Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with Major Depression, and the VA has diagnosed and service connected him for PTSD. Service connection establishes that applicant's PTSD also existed during military service. There is no evidence to support that applicant’s post-service diagnoses of Schizophrenia or Generalized Anxiety Disorder existed during military 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 there is evidence of mitigating BH conditions that provide partial mitigation for the basis of separation. The applicant was diagnosed in service with Major Depression, and the VA has diagnosed and service connected him for PTSD. Given the nexus between PTSD/Major Depression and self- medicating with substances, applicant’s DUI is mitigated by his PTSD and Major Depression. Given the nexus between PTSD, avoidance, and difficulty with authority, applicant’s PTSD also mitigates being late to formations and disrespect. However, there is no natural sequelae between PTSD or Major Depression and assault and battery or child endangerment, so this misconduct is not mitigated. Finally, there is no evidence to support the applicant’s post-service diagnoses of Schizophrenia or Generalized Anxiety Disorder existed during military service, so these diagnoses provide no mitigation for any of the misconduct that led to applicant’s separation. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence the Board determined that the applicant’s PTSD and Major Depressive Disorder did not outweigh the assault and battery or child endangerment. b. Response to Contention(s): (1) The applicant contends the discharge was improper because the command used the former discharge to separate the applicant. The Board considered this contention and determined the applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command, therefore the Board determined the applicant’s discharge was appropriate. (2) The applicant contends being discharged without the help of the chain of command with the stress from family, war, and death of a foreign family and battle buddies, and the evidence shows there was a disconnect between the applicant and the command. The Board considered this contention and determined that the applicant’s stress from family, war and death of a foreign family and battle buddies does not mitigate the applicant’s assault and battery or child endangerment as the Army affords many avenues to Soldier’s including seeking separation for hardship (3) The applicant contends documentary evidence showing the disability rating for PTSD and treatment by the VA justifies the request for an upgrade. The Board considered this contention but determined that there is no natural sequelae between PTSD or Major Depression and assault and battery or child endangerment, so this misconduct is not mitigated. There is no evidence to support the applicant’s post-service diagnoses of Schizophrenia or Generalized Anxiety Disorder existed during military service, so these diagnoses provide no mitigation for any of the misconduct that led to applicant’s separation. 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 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 PTSD and Major Depressive Disorder did not mitigate the offenses of assault, battery or child endangerment. The Board found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge (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 AR20210001730 1