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, the discharge was handled unjustly. If the applicant had been represented by a judge advocate, the command would have found the discharge was because of the criminal aspect. The way the civilian personnel handled the applicant’s trial was against proper criminal procedure. The applicant had poor representation and was not able to make decisions. The applicant was represented by a caseworker because of the applicant’s diminished mental capacity. The military did nothing to aid the applicant. The applicant believes if all the supporting documents are considered, the applicant’s actions were a direct result of post-traumatic stress disorder (PTSD) and undiagnosed autism, namely Asperger’s Syndrome. The military did not do anything to investigate such things. The applicant requested help while assigned to Fort Hood, but nothing was done. The applicant’s military medical records and psychiatric records since incarceration will show previous mental instability. The applicant desires the previous records to show the applicant’s arguments are true and correct. b. Board Type and Decision: In a records review conducted on 9 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: Misconduct (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 14 April 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 December 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On 17 December 2007, the applicant was indicted by a Grand Jury in McCullough, Texas on four counts of injury to a child. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 15 December 2008, the applicant waived legal counsel. (5) Administrative Separation Board: On 15 December 2008, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 26 March 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 September 2006 / 6 years, 22 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Operations / 1 year, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Personnel Action form, reflects the applicant’s duty status changed from “Present for Duty (PDY),” to “Civilian Confinement (CCA),” effective date 13 November 2007. Serious Incident Report, dated 14 November 2007, reflects the type of incident as aggravated assault of a child and adult. The applicant was having relationship issues with the spouse and the couple separated. The couple’s three children live with the spouse. The applicant visited the spouse and during an altercation, the applicant began throwing items and threatened to kill the three children rather than let the spouse have them. The Child Protective Services was involved in the case because the couple’s youngest child sustained severe injuries during the altercation, which required an immediate life flight to the hospital. The report revealed in July 2007, the applicant was hospitalized previously for stress / suicidal ideations. Memorandum, subject: Case Review Committee (CRC) Case Determination, dated 5 February 2008, reflects the applicant was involved in an alleged child abuse incident and the CRC determined the allegation was substantiated with the applicant as the offender. The case was closed because the maltreatment was reduced or no longer present. The State of Texas Judgment of Conviction by Court, dated 8 June 2008, reflects the applicant was convicted of injury to a child. There were two attorneys listed as the applicant’s attorneys. It appeared to the court the applicant was competent to stand trial and was not influenced in making plea by any consideration of fear or by any persuasion prompting a confession of guilty. The applicant pled guilty and was sentenced to 17 years confinement, 209 days credited to the sentence of confinement. i. Lost Time / Mode of Return: 1 year, 5 months, 2 days (Confined by Civil Authorities, 13 November 2007 – 14 April 2009) / Discharged While Confined j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. The applicant indicated the military records and medical records were submitted as evidence, but these documents were not provided with the application. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for 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. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been confined by civilian authorities for 1 year, 5 months, 2 days / convicted of Injury to a Child and was sentenced to 17 years confinement, with 209 days credited to the sentence of confinement. The applicant contends PTSD and undiagnosed Autism affected behavior which led to the discharge. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The applicant’s AMHRR contains no documentation of PTSD or Autism diagnosis. The AMHRR is void of a mental status evaluation. The ARBA sent a letter to the applicant at the address in the application on 26 July 2016 requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends being unjustly discharged and the applicant was not represented by military counsel and the civilian counsel and / or caseworker were ineffective. The AMHRR reflects the applicant waived legal counsel during the separation proceedings and was represented by two attorneys during the civilian court proceedings. The civilian court system is beyond the Army’s jurisdiction. 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: depression. Additionally, the applicant asserts other behavioral health conditions to include PTSD and autism spectrum disorder 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 evidence of depression while on active duty, in addition to her assertions of other conditions noted above. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that she was diagnosed with depression on active duty and has asserted PTSD and autism spectrum disorder as potentially mitigating conditions, assertions which are worthy of consideration by the Board. Applicant’s medical records also indicate a self-reported history of bipolar disorder prior to enlistment. The advisor is unable to appreciate any formal (original) medical records containing diagnosis of PTSD, autism spectrum, or bipolar disorder. The only potentially mitigating diagnosis found in the active duty medical records is depression. Ultimately, neither depression (documented), PTSD, autism spectrum (both asserted) or history of bipolar disorder (noted in records) would result in the inability to differentiate right from wrong and adhere to the right and there is no nexus between any of these conditions and the offenses (injury to child) leading to separation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s depression, PTSD, and autism spectrum disorder outweighed the basis for applicant’s separation – injury to a child – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends PTSD and undiagnosed Autism affected behavior which led to the discharge. The Board considered this contention and the applicant’s assertion of PTSD and undiagnosed Autism, however the Board could not determine whether the applicant’s asserted PTSD and undiagnosed Autism actually outweighed the applicant’s injury to a child basis for separation without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board was unable to determine if the applicant’s asserted PTSD and undiagnosed Autism outweighed the applicant’s discharge (2) The applicant contends being unjustly discharged and the applicant was not represented by military counsel and the civilian counsel and / or caseworker were ineffective. The Board considered this contention and determined the applicant is responsible for obtaining counsel, military counsel is not appointed to represent service members in civilian courts. Thus, this contention does not warrant an upgrade. 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 applicant’s depression, PTSD and undiagnosed Autism Spectrum Disorder did not excuse or mitigate the offenses of injury to a child. 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, 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 AR20210001971 1