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, since being discharged, the applicant reentered the Army National Guard from 22 February 2007 until 22 February 2008. The applicant was injured in a 30 day train up getting ready to deploy to Iraq. Even though the applicant did not deploy in country, the applicant received an Operation Iraqi Freedom Line of Duty investigation. The applicant is now 100 percent permanently disabled through the VA and believes they have shown through additional service and hard work, they deserve an upgrade. b. Board Type and Decision: In a records review conducted on 18 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: 7 February 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 January 2002 (2) Basis for Separation: The applicant was informed of the following reasons: Received a Company Grade Article 15 on 24 April 2002 for Failure to Report (FTR); Received a Field Grade Article 15 on 6 January 2003 for disrespect to an NCO; and, Numerous Counseling statements displaying a Pattern of Misconduct. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 January 2003 (5) Administrative Separation Board: On 14 January 2003, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 27 January 2003 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 January 2001 / 3 years b. Age at Enlistment / Education / GT Score: 23 / GED / 93 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years, 10 months, 23 days d. Prior Service / Characterizations: ARNG, 15 March 1996 – 27 July 1996 / NIF IADT, 28 July 1996 – 7 November 1996 / HD ARNG, 8 November 1996 – 10 January 2001 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 24 April 2002, for failing to go at the time prescribed to the appointed place of duty on or about 12 April 2002. The punishment consisted of a reduction to E-3; forfeiture of $343 (suspended); and extra duty and restriction for 14 days. Report of Mental Status Evaluation, dated 11 December 2002, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. FG Article 15, dated 3 January 2003, for being disrespectful in language toward SGT C. on or about 25 November 2002. The punishment consisted of a reduction to E-2 (suspended); forfeiture of $764 pay per month for two months (suspended); and extra duty for 45 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 28 January 2003, reflects the suspended portion of the punishment imposed on 3 January 2003, was vacated for: Article 86, failure to go at the prescribed to the appointed place of duty, to Wit: 1730 extra duty. Several Developmental Counseling Forms, for disrespect of an NCO; failure to obey a lawful order by a senior NCO; failure to be at the appointed place of duty as specified time of 0600; missed movement; not at appointed place at appointed time; failure to report for duty; lack of military bearing; and verbal threat of a commissioned officer. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 26 November 2002, the examining medical physician noted in the comments section: Anxiety, hard to sleep, homicide intentions, and excessive worry. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 with listed attachments. 6. POST SERVICE ACCOMPLISHMENTS: The applicant rejoined the Army National Guard. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for 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 being 100 percent permanently disabled through the VA and believes they have shown through additional service and hard work, they deserve an upgrade. The applicant provided a letter from VA, dated 22 July 2015, which reflects the applicant was granted 100 percent service-connected disability; however, the letter does not state the nature of the disability. The applicant contends rejoining the Army National Guard and having good service. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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: anxiety disorder (SC) with associated depression. There is also evidence of non-mitigating conditions of personality disorder and intermittent explosive disorder in addition to post-discharge references to psychotic spectrum features that do not appear germane to the period of service in question. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of anxiety disorder service connected (SC) and associated depression as potentially mitigating conditions during the period of service in question. (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 has a complicated MH history, with numerous diagnoses over time and multiple periods of service. The overall records are ultimately suggestive of noteworthy anxiety and likely depressive symptoms during the period of active duty in question, with a service connection for anxiety disorder associated with the period under review. There is also evidence of personality disorder and intermittent explosive disorder which would be germane to this period, but neither of these would be considered potentially mitigating conditions. The medical advisor opines applicant’s records are suggestive of significant personality features (diagnosed as a disorder) with a history of explosive outbursts beyond that which would typically be associated with depression and anxiety. However, under liberal consideration guidelines, presence of anxiety and depression would mitigate some of the misconduct associated with basis of discharge. Anxiety disorder would mitigate FTRs in the basis and otherwise noted in applicant’s disciplinary record (to include missing movement) due to these being avoidance behaviors often associated with the natural history of anxiety disorders. Anxiety and depression would not mitigate the disrespect to NCO (which was in essence a threat or act of intimidation) noted in the basis of separation, as there is no nexus between such conditions and such conduct. Other issues of note in applicant’s overall pattern of misconduct include loss of bearing/making a verbal threat against a commissioned officer, which is not mitigated as there is nexus between depression/anxiety and making such a threat, nor is there a nexus between anxiety/depression and encouraging applicant’s brother to show disrespect to chain of command as a civilian. (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 anxiety disorder (SC) with associated depression outweighed the basis for applicant’s separation –disrespect to an NCO, numerous counseling statements, and additional misconduct in the file of loss of bearing and making a verbal threat against a commissioned officer. b. Response to Contention(s): (1) The applicant contends being 100 percent permanently disabled through the VA and believes they have shown through additional service and hard work, they deserve an upgrade. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member’s discharge characterization. After liberally considering all the evidence, including the VA determination, the Board found that the applicant had unmitigated basis for separation and was properly and equitably discharged. (2) The applicant contends rejoining the Army National Guard and having good service. The Board considered the applicant’s 6 years of service and the numerous awards received by the applicant but determined that these factors did not outweigh the applicant’s disrespect to an NCO, numerous counseling statements, and additional misconduct in the file of loss of bearing and making a verbal threat against a commissioned officer. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 anxiety disorder (SC) with associated depression did not excuse or mitigate the offenses of disrespect to an NCO, numerous counseling statements, and additional misconduct in the file of loss of bearing and making a verbal threat against a commissioned officer. The Board also considered the applicant's contentions and found that 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 AR20210001841 1