1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, being diagnosed with an adjustment disorder with depressed mood but was not provided a treatment plan. The applicant had a high GT score and did well on evaluations when the applicant’s mood was right. The applicant did not lose any time and all the charges stem from missing formations. The applicant had sleep issues, which contributed to the applicant’s problem. The applicant requested a sleep study but was refused. The sleep issues caused the applicant to miss formations and become the “dirtbag.” As a scapegoat, the applicant was given the worst assignments, which caused the applicant to become angry and depressed and the applicant to have more sleep issues. The pattern developed. b. Board Type and Decision: In a records review conducted on 2 May 2023, and by a 3-2 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 March 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On 25 August 2010; 22 and 28 September 2010; 13 October 2010; 22, 24, and 29 November 2010; 6, 7 (on two occasions), 12, and 16 December 2010, and 5 January 2011, the applicant failed to go at the time prescribed to the appointed place of duty. On 16 December 2010, the applicant failed to obey a direct order from Sergeant (SGT) P. M. (on two occasions), Sergeant First Class (SFC) L., and SGT T. J., noncommissioned officers (NCOs). On 7 September 2010, the applicant failed to obey a direct order from SGT K. T., an NCO. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 15 February 2011, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 July 2009 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21E10, Construction Equipment Operator / 1 year, 8 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant’s Enlisted Record Brief (ERB), dated 31 January 2011, reflects the applicant was flagged for APFT failure (JA), effective 7 July 2010; Involuntary Separation or Discharge (Field Initiated) (BA), effective 7 December 2010; and Adverse Action (AA), effective 12 January 2011. The applicant was reduced from E-3 to E-3 effective 2 December 2010. Numerous Developmental Counseling Forms, for, but not limited to: pending separation under chapter 14-2b. failing to be at appointed place of duty, disrespecting and disobeying NCOs. not being in the proper uniform. leaving the place of duty. failure to obey order or regulation. failing to report on time for extra duty. being recommended for Article 15, UCMJ. Various counseling statements reflect the applicant reported to the counselor of having issues with waking up because of the medication the applicant was taking. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Report of Behavioral Health Evaluation, dated 21 December 2010, reflects the applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The applicant was diagnosed with: Adjustment disorder with anxiety and depressed mood. (2) AMHRR Listed: BHE as described in previous paragraph 4j(1). Report of Medical History, dated 8 December 2010, the applicant reported having depression which made it hard for the applicant to wake up. The applicant has been to Community Mental Health and hospitals for mental health. The examining medical physician portion of the document was not completed. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Report of Behavioral Health Evaluation; and Commander’s Report. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12b, 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. 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 adjustment disorder with depressed mood along with sleep issues, affected behavior which led to the discharge. The applicant’s AMHRR shows the applicant underwent a behavioral health evaluation (BHE) on 21 December 2010, which reflects the applicant could understand and participate in administrative proceedings; was mentally responsible; and met medical retention requirements. The applicant was diagnosed with adjustment disorder with anxiety and depressed mood. The BHE was considered by the separation authority. The applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the applicant did not receive any assistance with mental health or medical condition. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends maltreatment by members of unit. There is no evidence in the AMHRR the applicant sought assistance or reported the maltreatment. ? 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, service connected as Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of depression under multiple diagnoses on Active Duty, now service connected as MDD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that applicant has evidence of depression while on Active Duty and is service connected for MDD. MDD mitigates the failure to report to the appointed place of duty 12x, failure to obey a direct order from an NCO, and disrespect of NCO within applicant’s service history and associated with the discharge, but not wearing a proper uniform is not mitigated. Depressive symptoms can be associated with periods of low motivation, low energy, irritability, and indifference to meeting work expectations, and as such they mitigate periodic occasions of failure to report, loss of military bearing, and/or indifference to minor directives by superiors. (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 MDD outweighed the basis for applicant’s separation – FTR x 12, disobeying an order x 3, disrespect to NCOs, and failure to wear a proper uniform. The applicant’s remaining responsibility for the numerous and frequent misconduct diminished the quality of service below that of sufficiently meritorious required for an Honorable Discharge. b. Response to Contention(s): (1) The applicant contends adjustment disorder with depressed mood along with sleep issues, affected behavior which led to the discharge. The Board considered this contention and noted that while the Board’s Medical Advisor provided partial medical mitigation for the offenses due to the applicant’s MDD, The Board determined that the nature and frequency of the offenses outweigh the partial mitigation and thus, the discharge is proper and equitable. (2) The applicant contends good service. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the FTR, disobedience, and disrespect misconduct, the applicant diminished the quality of service below the level of meritorious service required for an honorable discharge at the time of separation. (3) The applicant contends the applicant did not receive any assistance with mental health or medical condition. The Board considered this contention and noted that the applicant had multiple encounters with behavioral health including an evaluation at Fort Leonard Wood in 2009, reporting to providers for depressive symptoms in 2010, and an ASAP evaluation in 2011. The Chapter 14 MSE cleared the applicant for administrative separation. Ultimately, the Board determined there was insufficient evidence provided of any arbitrary or capricious action taken by the separation authority. (4) The applicant contends maltreatment by members of unit. The Board considered this contention and the applicant’s assertion of maltreatment, however the Board determined that there is insufficient evidence in official records, and the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the nature of the offenses. 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 MDD outweighed the basis for applicant’s separation – FTR, disobeying an order. 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 GD 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, 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 AR20210001974 1