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 an upgrade to honorable. The applicant seeks relief contending, in effect, having been unjustly and unlawfully separated under Chapter 14, because all options for rehabilitation were not exhausted. The applicant was suffering from several health issues. The symptoms of an undiagnosed hyperthyroidism have led to minor disciplinary infractions which ultimately led to unsatisfactory performance as a Soldier. The applicant was the constant target of verbal and physical abuse, racial remarks, and the ethnicity being made fun of. There was lack of respect towards the applicant and the rules and regulations of the Army. The first sergeant assaulted the applicant by grabbing and shoving the applicant into a bathroom and began chocking and touching the applicant inappropriately. The incident was reported to the MPs, except for the sexual assault because the applicant was embarrassed and did not want to be labeled, “gay” and not being able to defend oneself. The applicant was forced to do pushups three days after a car accident despite being instructed not to do physical training for two weeks. The NCOs disregarded the sick slips and never considered the applicant’s health conditions. The doctors overlooked the lab work because the command intended to immediately separate the applicant to cover up several errors and the attack by the first sergeant. For two months, the applicant who was in constant fear, was forced to work next to the first sergeant. Since the attack, the applicant suffered from panic attacks and agoraphobia and has never been the same. The PTSD and the characterization of the discharge have haunted the applicant. The implications of the discharge on the family, finances, and professional career should be considered. The applicant accepts full responsibility for stealing an Xbox game from AAFES. Because of the severe PTSD and disparaging DD Form 214, the applicant was unable to collect the unemployment and social security disability benefits or obtain employment. b. Board Type and Decision: In a records review conducted on 11 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 (Minor Infractions) / AR 635-200, Chapter 14-12a / JKN / RE-3 / Honorable b. Date of Discharge: 20 April 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 April 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 1 November 2008, the applicant unlawfully stole an XBOX 360 video game, a value of about $59.99 and the property of the Army and Air Force Exchange Service (AAFES), in violation of Article 121, UCMJ. On 18 September 2009, the applicant assaulted the spouse, V. A., by kicking the spouse numerous times on the shins and shooting the right leg with a BB gun, in violation of Article 128, UCMJ. Additionally, making a false official statement to 1SG J. R. and on several occasions: disobeying lawful orders from a noncommissioned officer; being disrespectful in language towards a noncommissioned officer; and failing to report to the appointed place of duty. Army Substance Abuse Program (ASAP) Enrollment form, dated 19 February 2010, reflects the applicant was command-referred in the ASAP. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 April 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 April 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2008 / 6 years b. Age at Enlistment / Education / GT Score: 20 / GED / 112 c. Highest Grade Achieved / MOS / Total Service: E-3 / 15Q10, Air Traffic Control Operator / 2 years, 2 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASUA, NDSM, GWOTSM, ASR g. Performance Ratings: NA / h. Disciplinary Action(s) / Evidentiary Record: Thirteen Developmental Counseling Forms, for various acts of misconduct Military Police Report, dated 1 November 2008, reflects the applicant was apprehended for: larceny of AAFES property (on post). Military Police Report, dated 21 September 2009, reflects the applicant was apprehended for simple assault and spouse abuse (on post). Report of Mental Status Evaluation, dated 29 March 2010, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Treatment Plan, dated 4 March 2010, indicates treatment plan was discussed with the applicant for problems: “Symptoms of anxiety as evidenced by chronic worry, poor appetite, sleep problems, concentration difficulties.” Report of Medical History (page 3), dated 2 April 2010, indicates the applicant reported behavioral health issues, and the examining physician noted in the comments section: the applicant having been “assaulted by 1SG,” suffered from “anxiety and panic attacks,” and had been in “Out-Patient daily care setting” and was “diagnosed with PTSD.” The applicant claims to have begun to stutter and stammer, “trouble falling asleep,” and to have been treated with medicine “since the incident with the 1SG.” The applicant is receiving counseling and had been “admitted to After-Care for anxiety and depression.” (2) AMHRR Listed: Report of Medical History as described in previous paragraph 4j(1). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statements; DD Form 214; EMT course certificate; and listed attachments. 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) Paragraph 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 “JKN” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). 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 waivable and nonwaivable 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 waivable. 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 narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12a, AR 635-200 with an honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Minor Infractions),” and the separation code is “JKN.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12a, is “JKN.” The applicant contends being unjustly and unlawfully separated because all options for rehabilitation were not exhausted. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant contends the doctors overlooked the lab work because the command intended to immediately separate the applicant to cover up several errors and the attack by the first sergeant. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends suffering from many health issues, such as: the undiagnosed hyperthyroidism leading to minor disciplinary infractions; having panic attacks and agoraphobia and never being the same since being attacked; and having PTSD. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD and having received treatment for anxiety and depression. The record shows the applicant underwent a mental status evaluation (MSE) on 29 March 2010, which indicates the applicant was mentally responsible. The MSE was considered by the separation authority. The applicant contends being a constant target of verbal and physical abuse, racial remarks, and the ethnicity being made fun of. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends the implications of the discharge on the family, finances, and professional career should be considered, and being unable to collect the unemployment and social security disability benefits. Eligibility for veteran’s or social security benefits 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. The applicant contends being unable to obtain employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 other diagnoses to include adjustment disorder (not typically considered mitigating) and anxiety disorder NOS. Additionally, the applicant asserts harassment and being victim of assault by member of chain of command, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was diagnosed with anxiety disorder nos and adjustment disorder on active duty and was subsequently service connected for PTSD. There is also evidence of reported assault by member of chain of command during applicant’s active service noted in applicant’s medical records. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that applicant has service connection for PTSD, with symptomatic anxiety diagnosed as anxiety disorder NOS on active duty. Applicant was also reportedly the victim of assault and possible MST by applicant’s 1SGT which appears to be the index trauma associated with PTSD. Although the medical records suggest the assault presumably leading to PTSD diagnosis occurred in February 2010 (after documented misconduct patterns began), under liberal consideration guidelines the medical provider will opine that PTSD and anxiety disorder (some of which does appear to be present prior to the reported assault) mitigates some of the behavior associated with applicant’s discharge to include FTR (an avoidance behavior associated with PTSD and anxiety), disrespect toward NCO and disobeying lawful orders (due to irritability and disrespect/distrust of authority figures often associated with PTSD and anxiety sequelae), and referral to ASAP (due to association between substance use and self-medication of symptoms). PTSD, anxiety disorder, and being victim of harassment and/or assault does not result in inability to distinguish right from wrong and adhere to the right and provides no mitigation for theft from AAFES (which also appears to have occurred prior to the reported index trauma/assault incident even if anxiety symptoms were already present), assault of spouse (also chronologically appearing to have occurred before the index trauma), and making false official statements. (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, adjustment disorder, and anxiety disorder NOS outweighed the basis for applicant’s separation – theft, domestic assault, and making false official statements – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention and determined the current characterization of service is honorable, there is no further relief available with respect to characterization. Liberal consideration was applied to the narrative reason, and it was determined CONDITION did mitigate some of the misconduct, but did not fully excuse the misconduct, the applicant was involuntarily separated for theft, domestic assault, and making false official statements and the fraction of responsibility remaining with the applicant makes “Minor Infractions” equitable (2) The applicant contends the SPD code should be changed. The Board considered this contention and determined that the applicant received the appropriate SPD code for the discharge specified by AR 635-200, paragraph 14-12a is “JKN.” Therefore, no change is warranted. (3) The applicant contends being unjustly and unlawfully separated because all options for rehabilitation were not exhausted. The Board considered this contention and found insufficient evidence to support this contention. 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. In light of the current evidence of record, the Board determined the applicant’s discharge was appropriate. (4) The applicant contends the doctors overlooked the lab work because the command intended to immediately separate the applicant to cover up several errors and the attack by the first sergeant. The Board considerd this contention and determined there is insufficient evidence to support the doctors overlooked lab work to assist the command in covering up an attack and immediately separating the applicant from military service. The applicant was properly and equitably separated. (5) The applicant contends suffering from many health issues, such as: the undiagnosed hyperthyroidism leading to minor disciplinary infractions; having panic attacks and agoraphobia and never being the same since being attacked; and having PTSD. The applicant contends being a constant target of verbal and physical abuse, racial remarks, and the ethnicity being made fun of. The Board considered this contention and determined that the applicant’s many health issues, undiagnosed hyperthyroidism, panic attacks, agoraphobia, harassment, verbal and physical abuse does not mitigate or excuse the applicant’s theft, domestic assault, and making false official statements as the Army affords many avenues to Soldier’s including seeking separation for hardship. (6) The applicant contends the implications of the discharge on the family, finances, and professional career should be considered. The applicant contends being unable to obtain employment and being unable to collect the unemployment and social security disability benefits. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. The applicant signed in understanding on 13 April 2010, of the substantial prejudice in civilian life the applicant could encounter if a general or other than honorable discharge was to be issued to the applicant. However, the applicant currently holds an honorable discharge, no further upgrade is available regarding characterization of 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 determined the discharge is proper and equitable as a prior ADRB has upgraded the discharge with a Character of Honorable, therefore no further relief is available. (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 AR20210001811 1