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, the applicant enlisted as an E-2 and was one of the very few who passed the first Army Physical Fitness Tests. The applicant was selected as the guidon bearer and was at the very front of each ruck march and never fell out. The applicant was promoted to a private first class / E-3 in basic training, but everything changed after basic training. The applicant proceeded to advanced individual training (AIT) where the applicant was verbally harassed by two noncommissioned officers in charge (NCOIC), and no action was taken. Near the end of AIT, the applicant’s squad NCO was banned from the company for placing hands on a Soldier. This same NCO came to the company, was in the applicant’s face, and had the applicant backed into a corner, and yelling about how the applicant was going to come to detail. The applicant had made prior arrangements to drive the duty van. Knowing the NCO was not supposed to be on the grounds, the applicant feared abuse the applicant walked to the first sergeant’s office while the NCO yelled behind the applicant. No action was taken. After arriving at the first duty station at Fort Bragg, the applicant discovered the applicant was pregnant a few weeks later. The applicant and the applicant’s fiancé broke up and the applicant was an emotional wreck. Every day, the applicant’s sergeant verbally harassed the applicant and tried to the applicant do the applicant should not have while the applicant was pregnant. The NCO told the applicant to sit behind the truck while during the preventive maintenance checks and services were done on it. The NCO made the applicant perform regular physical training. The applicant had to request to be taught because the applicant was excluded from the applicant’s job and everyone else. The sergeant first class tried to come at the applicant, but the other NCO held the sergeant first class back. During the discharge process, the applicant was moved to Supply, and the brigade commander actually noticed a positive change in the applicant. The applicant was severely mistreated. The applicant had faults, but they were to defend the applicant and the applicant’s baby. The applicant was separated for backtalking, questioning the NCOs, although the NCOs were harming the lives of the applicant and the baby. The applicant was discharged and had a child, but the child passed away from sudden infant death syndrome (SIDS) at eight months old. The applicant was accepted into the nursing program. The applicant attended school while being 5 months pregnant. During this time one of the professors died suddenly, as did the applicant’s grandfather. The applicant graduated valedictorian of the class. This shows the applicant is hard-working, committed, and determined and something was not right surrounding the incident during the applicant’s assignment at Fort Bragg. The applicant is a licensed nurse and would love to take care of those people risking their lives for the applicant’s family. The only thing holding the applicant back is a couple of letters and numbers, in essence, the characterization and narrative reason. The applicant was fresh out of basic training and did not know how to properly fight for the rights as a Soldier. b. Board Type and Decision: In a records review conducted on 9 March 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 23 September 2010, the applicant failed to report for 0845 work call at S-6 section of Headquarters and Headquarter Company (HHC), 20th Engineer Brigade, Fort Bragg, NC. On 22 September 2010, the applicant was disrespectful to a superior noncommissioned officer (NCO), Sergeant H., by not assuming the position of “at ease” when ordered to do so. On 22 September 2010, the applicant was disrespectful to the commanding officer, Captain (CPT) C. B., by continually interrupting CPT C. B. when spoken to. On 22 September 2010, the applicant was disobedient to a senior NCO, First Sergeant (1SG) M., by refusing to obey an order to stop interrupting the commander. On 22 September 2010, the applicant was disrespectful to the commanding officer, CPT B., by saying, “I will never report to the S-6 shop and you can count me AWOL, give me an Article 15, or do whatever you want, but I am not going back there,” or words to that effect, in response to the commander’s order to report to S-6 for duty on time and in the right uniform. On 22 September 2010, the applicant was disrespectful to an NCO, Staff Sergeant (SSG) P., by screaming, “Don’t yell at me!” or words to that effect. On 21 September 2010, the applicant failed to report by failing to be outside the barracks room for inspection at 0500 hours. On 21 September 2010, the applicant failed to report to 0630 accountability formation at HHC, 20th Engineer Brigade. On 20 September 2010, at or around 1630 hours, the applicant was disrespectful to an NCO, SSG P., when the applicant stood up while SSG P. was speaking to the applicant and stomped out of the S-6 building while saying, “Fuck this shit!” or words to that effect. On 20 September 2010, the applicant was disrespectful to an NCO, SGT H., by ignoring SGT H. when SGT H. called the applicant’s name, for the applicant to return to the office, and the applicant slammed the doors while exiting the building; additionally, the applicant disobeyed orders by refusing to return to S-6 when ordered by SGT H., who called to relay the order that Major (MAJ) M., a superior commissioned officer, wanted to speak to the applicant. On 16 September 2010, the applicant failed to report for 0630 accountability formation at HHC, 20th Engineer Brigade. On 14 September 2010, the applicant disobeyed an NCO, SGT H., by failing to turn in a paper on the physical training uniform, which was due at 0900 hours. On September 2010, the failed to report to 0630 accountability formation at HHC, 20th Engineer Brigade. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 16 November 2010, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 23 November 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 January 2010 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-3 / 25U10, Signal Support System Specialist / 10 months, 13 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: Four Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Absent Without Leave (AWOL),” effective date 3 August 2010; From “AWOL” to “PDY,” effective date 30 August 2010; From “PDY” to “AWOL,” effective date 21 September 2010; and From “AWOL” to “PDY,” effective date 22 September 2010. Record of Trial by Summary Court-Martial, reflects the applicant was tried in a Summary Court- Martial on 19 November 2010. The applicant was charged with 13 specifications. The summary of offenses, pleas, and findings: Charge I: Violation of Article 86, UCMJ: Specification 1: Between 3 and 30 August 2010, was absent without leave (AWOL). Plea: Not Guilty. Finding: Guilty. Specifications 2 and 4 through 6: On 9, 16, 21 and 24 September 2010, failed to go at the time prescribed to accountability formation. Plea: Not Guilty. Finding: Guilty. Specification 3: On 21 September 2010, failed to report to barracks inspection. Plea: Not Guilty. Finding: Not Guilty. Charge II: Violation of Article 89, UCMJ. Specification 1 [sic]: On 22 September 2010, was disrespectful toward a superior commissioned officer. Plea: Not Guilty. Finding: Guilty. Charge II [sic]: Violation of Article 91, UCMJ: Specification 1: On 20 September 2010, did treat in contempt and was disrespectful in language and deportment toward a noncommissioned officer. Plea: Not Guilty. Finding: Not Guilty. Specifications 2, 3, and 6: On 20, 22, and 29 September 2010 and 4 October 2010, did willfully disobey a lawful order from a noncommissioned officer. Plea: Not Guilty. Finding: Guilty. Specification 4: On 20 October 2010, did treat in contempt and was disrespectful in language and deportment toward a noncommissioned officer: Not Guilty. Finding: Guilty. Specification 5: On 29 September 2010, did willfully disobey a lawful order from a noncommissioned officer. Plea: Not Guilty. Finding: Not Guilty. Sentence: Reduction to E-1; forfeiture two-thirds pay ($964); restriction for two months; and hard labor without confinement for 45 days. On 1 December 2010, only so much of the sentence was approved as provides for a reduction to E-1, forfeiture of two-thirds pay ($964); and restriction for two months and ordered executed. Orders 343-0266, dated 9 December 2010, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 23 December 2010 from the Regular Army. The orders were amended by Orders 355-0265, dated 21 December 2010, providing additional instructions for pregnant Soldiers. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 28 days: AWOL, 3 August 2010 – 29 August 2010 / Surrendered to Gaining Installation AWOL, 21 September 2010 – 21 September 2010 / Surrendered – Reported to Unit j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 7 October 2010, 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 post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) and did not meet the criteria for either diagnosis of TBI or PTSD. The applicant was diagnosed with: Occupational Problems and AXIS II diagnosis was deferred. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant graduated from the nursing program as a valedictorian of the class and is a licensed nurse. 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 record of service, 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 general (under 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 harassment and discrimination by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of “3.” There is no basis upon which to grant a change to the reason or the RE code. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant graduated from the nursing program as a valedictorian of the class and is a licensed nurse. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder. (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. (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. However, an Adjustment Disorder is not a mitigating BH condition for Failures To Report (FTR), disrespect, and disobeying an order, that led to applicant’s separation due to no natural sequela. The VA has not diagnosed or service connected any BH conditions, and the applicant does not assert having any BH conditions. (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 Adjustment Disorder outweighed the basis for applicant’s separation – multiple FTRs, disrespect on several occasions, and disobeying an order twice – for the aforementioned reason(s). 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 the applicant’s narrative reason for discharge is appropriate as the applicant had a pattern of misconduct with 4x FTRs, 6x disrespect, and 2x disobeying an order. Thus, the applicant was properly and equitably discharged. (2) The applicant contends harassment and discrimination by members of the chain of command. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient evidence in the file to support the chain of command harassing or discriminating against the applicant. The applicant was properly and equitably discharged. (3) 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 way of multiple FTRs, disrespect on several occasions, and disobeying an order twice, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant desires to rejoin the Military Service. The Board considered this contention and voted to maintain the RE-code to a RE-3, which is a waivable code. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (5) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (6) The applicant graduated from the nursing program as a valedictorian of the class and is a licensed nurse. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention and determined that the post-service accomplishments did not outweigh the misconduct that led to the applicant’s separation. 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 Adjustment Disorder did not excuse or mitigate the offenses of multiple FTRs, disrespect on several occasions, and disobeying an order twice. 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 AR20210002167 1