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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, there was not sufficient evidence to justify chaptering the applicant from the Army, nor the character of the discharge the applicant received. The applicant was treated unfairly and judged unfairly by the Separation Board. The applicant returned from JRTC in August 2009; the spouse and children were gone. The spouse left and went to their hometown. The spouse promised the applicant they would return in December 2009. The applicant drove to Georgia to visit the children, spouse, and in-laws. The spouse was living with an opposite-sex person and told the applicant they could not live in New York and wanted a divorce when the applicant returned from a deployment. For several months the applicant was depressed and begged the spouse to better the marriage but eventually gave up and met S. b. Board Type and Decision: In a records review conducted on 1 June 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 9 July 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 October 2013 (2) Basis for Separation: The applicant was informed of the following reasons: Violated a court order of protection on or about 14 July 2011 and again on 8 August 2013; Assaulted V. S. as well as destroyed private property in the form of a lamp, a stepping stool and a drum stool on or about 3 January 2013; Assaulted V. D. by pushing on or about 23 January 2011; and, Assaulted V. D. by pushing against a wall and headbutting V. D. in front of V. D.’s minor child. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 November 2013 (5) Administrative Separation Board: On 14 November 2013, 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. Documents contained in the applicant’s AMHRR reflect an Administrative Separation Board was convened on 6 May 2014; however, the Board proceedings and findings are not in the record. (6) Separation Decision Date / Characterization: 2 June 2014 / Under Other Than Honorable Conditions / On 14 June 2014 the separation authority signed a second memorandum directing discharge with the same characterization 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 October 2010 / 4 years b. Age at Enlistment / Education / GT Score: 26 / some college / 87 c. Highest Grade Achieved / MOS / Total Service: E-5 / 91J20, Quartermaster and Chemical Equipment Repair / 11 years, 6 months, 3 days d. Prior Service / Characterizations: RA, 7 January 2003 – 7 April 2005 / HD RA, 8 April 2005 – 8 October 2010 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (30 January 2010 – 30 January 2011); Iraq (20 November 2005 – 26 September 2006; 14 October 2007 – 25 November 2008) f. Awards and Decorations: AFC-CS, ICM-3CS, ARCOM-4, AAM-3, JMUA, MUC, ARCOM-3, NDSM, GWOTSM, KDSM, ASR, OSR-4, NATOMDL g. Performance Ratings: 10 April 2010 – 9 January 2013 / Fully Capable 10 January 2013 – 9 January 2014 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 23 January 2011, reflects the applicant was apprehended for endangering the welfare of child NYPL 260.10 (1)(A) (Civil) (Off Post) and harassment 2nd degree NYPL 240.26 (1) (Civil) (Off Post). Military Police Report, dated 6 June 2011, reflects the applicant was apprehended for harassment 2nd degree NYPL 240.26 (Civil) (Off Post) and criminal mischief 4th degree NYPL 145.00 (Civil) (off Post). Military Police Report, dated 15 July 2011, reflects the applicant was apprehended for criminal contempt 2nd degree NYPL.215.50 (Civil) (Off Post). Military Police Report, dated 4 January 2013, reflects the applicant was apprehended for criminal mischief 4th degree, NYPL 145.00(1) (Civil) (Off Post). Military Police Report, dated 9 August 2013, reflects the applicant was apprehended for criminal contempt 1st degree NYPL 215.51(B)(5) (Civil) (Off Post) and harassment 2nd degree NYPL 240.26 (1) (Civil) (Off Post). Numerous Developmental Counseling Forms, for being late to duty; patterns of misconduct; indebtedness; failure to report; criminal mischief; failure to stay up to date of a loan; failure to report for first formation; violation of the Manual for Courts Martial Article 134; administrative implementation of a bar to reenlistment; failure to be at the appointed place of duty; order of protection and the applicant’s arrest; failure to provide adequate financial support to family members; and, missing appointments. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Medical History, dated 10 September 2013, the applicant noted being seen by behavioral health for anxiety issues. Report of Mental Status Evaluation, dated 13 September 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The applicant was diagnosed with: Axis I: Adjustment Disorder with Anxiety and Depressed Mood, by history; Other Specified Family Circumstances, by history. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; two third-party letters. 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) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 14-12b, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Pattern of Misconduct,” and the separation code is “JKA.” 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 stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends being depressed due to martial issues. The applicant’s AMHRR contains Report of Medical History, dated 10 September 2013, which reflects the applicant noted being seen by behavioral health for anxiety issues. Report of Mental Status Evaluation, dated 13 September 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The applicant was diagnosed with: Axis I: Adjustment Disorder with Anxiety and Depressed Mood, by history; Other Specified Family Circumstances, by history. The MSE was considered by the separation authority. The applicant contends there was not sufficient evidence to justify chaptering the applicant out of the Army; and was unfairly treated and judged by the Separation Board. The applicant’s AMHRR is void of an Administrative Separation Board proceedings or findings. The third-party statements provided with the application speak of the issues with the separation Board. One statement was from the applicant’s defense counsel which states the applicant was treated grossly unfairly at the Board and should not have been separated with an under other than honorable conditions discharge, and the other statement is from a sitting member of the separation Board, which states the sitting member was in disagreement with the findings of the other Board members. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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, Adjustment Disorder. Additionally, the applicant asserts Depression, 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 that the applicant was diagnosed in service with an Adjustment Disorder and combat-related PTSD. The VA has also service connected applicant’s PTSD. In addition, applicant self-asserts having Depression at the time of military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder and combat-related PTSD. The VA has also service connected applicant’s PTSD. In addition, applicant self-asserts having Depression at the time of military service. However, there is no natural sequela between PTSD, an Adjustment Disorder, or Depression and domestic assault or violating a protective order, so this misconduct is not mitigated by any of applicant’s BH conditions. (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, or asserted Depression outweighed the basis for applicant’s separation – violation of protection order, domestic assault, and destruction of private property – for the aforementioned reasons. 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 that the applicant was properly separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Pattern of Misconduct,” and the separation code is “JKA.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214, and dictates entry of the narrative reason for separation. (2) The applicant contends family issues, to include martial issues, affected behavior and ultimately caused the discharge. The Board considered this contention and determined that the applicant’s asserted family issues do not mitigate the applicant’s basis for separation as the Army affords many avenues to Soldier’s including seeking separation for hardship. (3) The applicant contends being depressed affected behavior and ultimately caused the discharge. The Board considered this contention and determined that the applicant’s PTSD, Adjustment Disorder, and asserted Depression, do not outweigh the severity of the applicant’s misconduct as there is no sequelae between any of the applicant’s BH conditions and the nature of the misconduct. (4) The applicant contends there was not sufficient evidence to justify chaptering the applicant out of the Army; and was unfairly treated and judged by the Separation Board. The Board considered this contention and determined there was insufficient evidence in the AMHRR or provided by the applicant of any arbitrary or capricious action taken by the separation authority. Thus, the Board determined the discharge was proper and equitable. 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, Adjustment Disorder, or asserted Depression outweighed the basis for applicant’s separation – violation of protection order, domestic assault, and destruction of private property. The Board also considered the applicant’s contentions of impropriety and inequity and determined there was insufficient evidence of any arbitrary or capricious actions taken by the Command during separation proceedings, and that the applicant was equitably discharged. 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 UOTHC 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 AR20210001964 1