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, when the applicant enlisted, the APFT scores were above 250. The applicant participated in several missions, handled security responsibilities, and drove the fuel and water trucks during the 2007 to 2008 Iraq deployment. The applicant fell from the fuel truck twice while in Iraq. The applicant did not believe to have been injured from the falls but noticed some body bruises and soreness. Much later, the applicant started experiencing problems falling asleep and getting up in the mornings. In February 2010, a 32-inch flat screen TV fell on the applicant’s back after tripping over the cord in the barracks room. The applicant had one year left in the Army and repeatedly requested a medical discharge, because of the injuries but was unjustly discharged. A new platoon sergeant, after a month, loudly and in front of others threatened to discharge the applicant from the Army within 30 days. When the applicant had to have surgery, there were confrontations with the chain of command. The documents to excuse the applicant were never honored by the chain of command, despite the medical treatments and injections for the back and neck from a civilian doctor. To avoid straining the body and the advice of no strenuous activities, the applicant was threatened for not going to the field to train alongside others. The applicant was physically assaulted by the squad leader, and after appealing for a transfer because of having been subjected to abuses, physically and mentally, the applicant was moved to a new unit. Three NCOs in the new unit began to make physical contacts, which the applicant perceived as sexual harassment. The investigation into the applicant’s claim of the harassments turned up no evidence or witnesses because the witnesses were too afraid to come forward. After receiving a FG Article 15, the appointed legal counsel for the discharge proceedings was unpleasant towards the applicant, and the conduct continued into the hearing. At the hearing, the transfer from the previous unit was used. The applicant returned to school full-time and became a medical assistant with receiving only 70 percent of the educational benefits; an upgrade would provide full benefits. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 30 May 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: 23 January 2013 c. Separation Facts: The applicant’s Army Military Human Resource Record (AMHRR) is void of the complete case separation file. However, the applicant provided several documents which are described below in 3c(1) through (5). (1) Date of Notification of Intent to Separate: 16 October 2012 (2) Basis for Separation: Commander’s Report, dated 18 October 2012, reflects the applicant was informed of the following reasons: On 16 and 30 September, 2, 12, 16, and 31 May, and 1 June 2012, the applicant failed to report; on 27 September 2011, the applicant lied and was disrespectful to SGT J. D.; on 30 July 2012, the applicant was disrespectful to SSG J. H.; and on 13 November 2011the applicant was disrespectful and disobeyed SSG M. J. (3) Recommended Characterization: NIF (4) Legal Consultation Date: 17 October 2012 (5) Administrative Separation Board: On 17 October 2012, the applicant requested consideration of the case by an administrative separation board. On 21 November 2012, the administrative separation board convened and determined the applicant committed a pattern of misconduct according to paragraph 14-12b, AR 635-200. The board recommended the applicant’s discharge with characterization of service of general (under honorable conditions). The separation authority approved the findings and recommendations (undated), of the administrative separation board. (6) Separation Decision Date / Characterization: 30 November 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 February 2008 / 6 years b. Age at Enlistment / Education / GT Score: 39 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 14 years, 8 months, 9 days d. Prior Service / Characterizations: ARNG, 18 September 1996 – 18 November 1996 / NA IADT, 19 November 1996 – 28 March 1997 / HD ARNG, 29 March 1997 – 17 September 2002 / HD USARCG, 18 September 2002 – 17 September 2004 / NIF (Break in Service) RA, 19 May 2006 – 13 February 2008 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (22 July 2007 – 14 October 2008) f. Awards and Decorations: ARCOM, AGCM-2, NDSM, GWOTSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant’s Enlisted Record Brief (ERB), dated 4 December 2012, reflects the applicant was flagged for Adverse Action (AA), effective 8 August 2012; Involuntary Separation or Discharge (Field Initiated) (BA), effective 8 August 2012; Army Body Composition Program (KA), effective 9 March 2012; and was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability code reflects the applicant was eligible for PCS reassignment, subject to normal PCS TOS restrictions. There was no termination date. The applicant was reduced from E-4 to E-1, effective 2 June 2010, followed by promotions to E-2 and E-3, effective 2 October 2011. The applicant’s DD Form 214 reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12b, with a narrative reason of Pattern of Misconduct. The DD Form 214 was not authenticated with the applicant’s electronic signature. The applicant had no time lost. The applicant provided four developmental counseling forms for failing to go at the time prescribed to the appointed place of duty on several occasions, being derelict in the performance of duties, and being disrespectful towards a noncommissioned officer. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Disabled American Veterans (DAV) letter, 25 August 2015, reflects the applicant was assigned 40 percent evaluation for traumatic brain injury with headaches, effective 7 April 2014. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; authored statement; Austin Pain Associates – Cedar Park Medications Report with treatment plan and epidural injection; list of Patient Appointments; Health Records Disabled American Veterans (DAV) letter; and email correspondence. 6. POST SERVICE ACCOMPLISHMENTS: While pursuing a nursing degree, the applicant returned to school fulltime and became a medical assistant. 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’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12b, by reason of Pattern of Misconduct, with a characterization of service of general (under honorable conditions). The applicant provided several records which provided details of the applicant’s discharge. The applicant contends when enlisted, the APFT scores were above 250, and participated in several missions, handled security responsibilities, and drove the fuel and water trucks during the 2007 to 2008 Iraq deployment. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends having received injuries from falling off the fuel truck twice while in Iraq, and from a 32-inch flat screen TV falling on the applicant’s back in the barracks room but had not noticed the extent of the injuries until much later, after experiencing problems falling asleep and getting up in the mornings. The applicant provided a VA letter which reflects the Veterans Administration has granted the applicant service connection for medical conditions, 40 percent for traumatic brain injury with headaches, the applicant suffered while on active duty. The available medical evidence in the AMHRR is void of any indication the applicant was suffering from a disabling medical or mental condition during the discharge processing, warranting separation processing through medical channels. The applicant contends being wrongfully discharged with only a year left in the Army and despite repeated requests for a medical discharge because of the injuries. The applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends harassment, including sexual harassments by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends the appointed legal counsel for the discharge proceedings was rude towards the applicant, and the conduct continued into the hearing. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The applicant contends having returned to school full-time and becoming a medical assistant. 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. The applicant contends an upgrade would provide full educational benefits. Eligibility for veterans’ benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: TBI. Additionally, the applicant asserts impact of medical issues and history of sexual harassment/MST, 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 is service connected for TBI and has asserted impact of medical conditions as well as sexual harassment/MST while on Active Duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical Advisor could not opine, even with liberal consideration of all the evidence, whether or not the applicant’s service related TBI and applicant’s asserted medical issues and history of MST/sexual harassment is a mitigating factor for the applicant’s basis for separation without knowing the actual basis of separation. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): (1) The applicant contends when enlisted, the APFT scores were above 250, and having participated in several missions, handled security responsibilities, and drove the fuel and water trucks during the 2007 to 2008 Iraq deployment. The Board recognizes and appreciates the applicant’s willingness to serve and considered this contention during board proceedings along with the totality of the applicant’s service record. (2) The applicant contends having received injuries from falling off the fuel truck twice while in Iraq, and from a 32-inch flat screen TV falling on the applicant’s back in the barracks room but had not noticed the extent of the injuries until much later, after experiencing problems falling asleep and getting up in the mornings. While Board acknowledges the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment, from the records and available evidence the Board the Board was unable to determine whether the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment actually outweighed the applicant’s discharge without the Board Medical Advisor determination on medical mitigation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment outweighs the applicant’s discharge. (3) The applicant contends being wrongfully discharged with only a year left in the Army and despite repeated requests for a medical discharge because of the injuries. The Board considered this contention and determined the applicant’s records do not reflect a medical discharge being considered for any medical conditions. The applicant was properly and equitably discharged. (4) The applicant contends harassment, including sexual harassments by members of the chain of command. While Board acknowledges the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment, from the records and available evidence the Board the Board was unable to determine whether the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment actually outweighed the applicant’s discharge without the Board Medical Advisor determination on medical mitigation. Without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment outweighs the applicant’s discharge. (5) The applicant contends the appointed legal counsel for the discharge proceedings was rude towards the applicant, and the conduct continued into the hearing. The Board considered this contention and determined without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if this contention could possibly outweigh the applicant’s discharge. (6) The applicant contends having returned to school full-time and becoming a medical assistant. The Board considered this contention and determined without knowing the facts and circumstances relating to the applicant’s discharge, the Board is unable to determine if this contention could possibly outweigh the applicant’s discharge. (7) The applicant contends an upgrade would provide full educational benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because despite applying liberal consideration of all the evidence before the Board, the Board is unable to determine if the applicant’s TBI diagnosis and assertion of medical issues and MST/sexual harassment excuses or mitigates the discharge due to the facts and circumstances relating to the applicant’s discharge are unknown. The Board also considered the applicant's contention regarding applicant’s service record, injuries sustained during deployment and a flat screen tv, and legal counsel being rude to applicant during discharge proceedings 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. (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 AR20210001869 1