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, earning an ARCOM with Valor award speaks volumes about the duties performed daily and demonstrates the applicant’s honorable service as an outstanding cavalry scout. The applicant was always brave, even while under fire and was wounded in action. In accordance with the oath sworn to, the applicant fought against the enemies of the United States in Iraq and Afghanistan. The current discharge does not appropriately reflect the valiant and honorable service. b. Board Type and Decision: In a records review conducted on 7 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: Misconduct (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 3 October 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 May 2013 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted of two counts of kidnapping and one count of assault with force. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 16 September 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 October 2010 / 5 years b. Age at Enlistment / Education / GT Score: 22 / GED / 119 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19D20, Calvary Scout / 6 years, 4 months, 17 days d. Prior Service / Characterizations: RA, 17 May 2007 – 17 October 2010 / HD e. Overseas Service / Combat Service: SWA / Iraq (12 November 2007 – 19 November 2008); Afghanistan (28 April 2010 – 29 April 2011) Awards and Decorations: ACM-CS, ARCOM-V, ARCOM-2, AAM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR-2, NATOMDL, CAB / The applicant’s AMHRR reflects award of the two additional ARCOM (ARCOM-4), however, the awards are not reflected on the DD Form 214. f. Performance Ratings: NIF g. Disciplinary Action(s) / Evidentiary Record: DD Form 616 (Report of Return of Absentee) reflects the applicant was apprehended by civil authorities on 18 September 2011. Two Personnel Action forms reflect the applicant’s duty status changed as follows: From “Dropped From Rolls,” to “Confined by Civil Authorities,” effective 20 July 2011 and 18 September 2011. The Superior Court, State of California, Felony Complaint, and an Amendment, filed 1 December 2011, lists Counts 1 through 11, with felony charges of: kidnapping; kidnapping with use of firearms; residential robbery; assault with a firearm; burglary; dissuading a witness; and resisting, obstructing, delaying of Peace Officer or EMT. The Superior Court of State of California, Waiver of Constitutional Rights and Plea, filed 11 October 2012, reflects the applicant pleaded no contest to Counts One and Four, kidnapping and the enhancement to Count One, use of firearm. The plea and admissions were based on an agreement between the applicant and the district attorney, and a promise to serve 18 years (8 years for kidnapping and 10 years for gun use). The applicant’s pleas and admissions were accepted by the Judge of the Superior Court on 11 October 2012. The Superior Court of State of California, Felony Abstract of Judgment-Determinate, filed 17 January 2013, reflects the sentence of 18 years in prison for the following serious or violent felonies: Counts 1A and 4A, kidnappings on 18 September 2011 and 14 August, Count 1B, assault with force/use of firearms. h. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Psychologist letter, dated 12 September 2012, reflects an “AXIS I” diagnoses of PTSD, Chronic; Major Depressive Disorder Recurrent Without Psychotic Features; Insomnia due to another AXIS I Disorder; and Amphetamine-Related Disorder, NOS. (2) AMHRR Listed: State of California Mental Health Evaluation, dated 8 March 2013, reflects and “Axis I” diagnoses of PTSD; Amphetamine Abuse; Opiate Abuse; Alcohol Abuse. The evaluation indicated a history of concussion during wartime and TBI reported. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Recommendation for Award with Narrative; Health Records; Military Acute Concussion Evaluation; Psychologist letter; National Personnel Records Center letter; CAB Orders; four ARCOM certificates; AAM certificate; NATOMDL certificate; AGCM Orders; Promotion Orders; self-authored letter; and DD Form 214. 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 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been confined by civilian authorities for 2 years and 16 days. The applicant had been convicted of two counts of kidnapping and one count of assault with force and was sentenced to 18 years in prison. The applicant contends the discharge does not appropriately reflect a valiant and honorable service because earning an ARCOM with Valor speaks volumes about the duties performed daily and demonstrates having served as an outstanding cavalry scout. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant’s AMHRR contains documentation which supports diagnoses of PTSD, amphetamine abuse, opiate abuse, and alcohol abuse. The applicant provided a psychologist letter reflecting an “AXIS I” diagnoses of PTSD, Chronic; Major depressive Disorder Recurrent without Psychotic features; insomnia due to another AXIS I disorder; and amphetamine-related disorder, NOS. The record shows the applicant underwent a civilian mental status evaluation (MSE) on 8 June 2012, which provided the diagnoses of PTSD, amphetamine abuse, opiate abuse, and alcohol abuse, and indicated the applicant had a history of concussion during wartime and TBI was reported. 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 with associated depression and evidence of possible TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is diagnosed with combat-related PTSD and has associated depressive disorder under multiple diagnoses to include major depressive disorder and other specified depressive disorder relevant to his time in service. There is also reference to service- related TBI in the record. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that applicant is service- connected for combat-related PTSD and has associated depressive disorder under multiple diagnoses to include major depressive disorder and other specified depressive disorder. Symptoms of PTSD and associated mood concerns were described in his medical records during his active service. TBI is also noted in records, but there is no evidence that any TBI was of such severity as to impair cognition, behavior, or judgment to an extent as to be considered for mitigation. Neither PTSD nor depression result in the inability to distinguish right from wrong and adhere to the right, and there is no nexus between such conditions and the offenses of kidnapping and assault with force cited in the basis of separation from service. (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 PTSD and TBI outweighed the basis for applicant’s separation – civil conviction for kidnapping and assault with force – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the discharge does not appropriately reflect a valiant and honorable service because earning an ARCOM with Valor speaks volumes about the duties performed daily and demonstrates having served as an outstanding cavalry scout. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the nature and severity of the applicant’s misconduct, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (2) The applicant’s AMHRR contains documentation which supports diagnoses of PTSD, amphetamine abuse, opiate abuse, and alcohol abuse. The Board considered this contention and determined that neither PTSD nor depression result in the inability to distinguish right from wrong and adhere to the right, and there is no nexus between such conditions and the offenses of kidnapping and assault with force cited in the basis of separation from service. 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, the available evidence did not support a conclusion that the applicant’s PTSD and TBI outweighed the basis for applicant’s separation – civil conviction for kidnapping and assault with force. 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20210001808 1