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, upon returning from Iraq, the applicant's personality changed which resulted in the applicant making bad decisions. b. Board Type and Decision: In a records review conducted on 30 March 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26 and 28, contain erroneous entries. The Board directed the following administrative corrections and reissue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12b, b. block 26, separation code changed to JKA, c. block 28, narrative reason for separation changed to Pattern of Misconduct 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 October 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 July 2012 (2) Basis for Separation: Under the provisions of Army Regulation 635-200, Chapter, 14-12b, Pattern of Misconduct, the applicant was informed of the following reasons: On 3 November 2011, the applicant administered corrective actions to Soldiers in Training of this company in accordance with Table 2-2, Training and Doctrine Command (TRADOC) Regulation 350-6, dated 28 January 2011, and paragraph 5-15, Training Circular (TC) 3-22.20, the number of repetitions during Red Phase should not exceed five for any one of the approved exercises available for use as corrective action. The applicant administered 10 repetitions each of: pushups, v-ups, squat benders, and mountain climbers. On 14 December 2011, the applicant received a local letter of reprimand for this misconduct. On 17 December 2011, the applicant was observed speeding on post in excess of 19 miles over the speed limit (74 MPH in a 55 MPH zone). It was discovered the applicant was driving on a suspended license. Upon search of the applicant's car, the Military Police would subsequently confiscate Spice and an unregistered weapon. On 20 January 2012, the applicant received a Field Grade Article 15 for these offenses. The punishment consisted of reduction to E-4; forfeiture of $1182 pay per month for two months; and extra duty and restriction for 45 days. The restriction was suspended until 30 July 2012. On 10 May 2012, the applicant failed a POV inspection because of expired registration and inoperable lights. The behavior demonstrated by the applicant was not compatible with satisfactory continued service. This type of conduct would not be tolerated. (3) Recommended Characterization: Under Other Than Honorable Conditions / The intermediate commanders recommended General (Under Honorable Conditions). (4) Legal Consultation Date: 20 July 2012 (5) Administrative Separation Board: On 20 July 2012, 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. On 25 September 2012, the separation authority approved the conditional waiver. (6) Separation Decision Date / Characterization: 25 September 2012 / General (Under Honorable Conditions) / On 25 September 2012, the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 October 2007 / 6 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K28, M1 Armor Crewman / 7 years, 5 months, 7 days d. Prior Service / Characterizations: RA, 12 May 2005 - 29 October 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (6 October 2008 - 24 September 2009) f. Awards and Decorations: ICM-2CS, ARCOM, AAM-2, MUC, AGCM, NDSM, GWOTSM, KDSM, NCOPDR-2, ASR, OSR-2 g. Performance Ratings: 1 March 2008 - 28 February 2011 / Fully Capable 1 March 2011 - 28 February 2012 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Informal AR 15-6 Investigation Findings and Recommendations, dated 18 November 2011, reflects the investigating officer found the applicant and another drill sergeant administered physical corrective training which exceeded the authorized limit in accordance with TRADOC Regulation 350-6. The drill sergeant's actions, along with a trainee's medical condition contributed to the trainee requiring emergency care. The investigating officer recommended the applicant receive a letter of reprimand to be filed locally. Memorandum of Reprimand, dated 14 December 2011, reflects the applicant was reprimanded for trainee abuse based on the findings of an Army Regulation 15-6 Investigation which was conducted regarding the applicant exceeding the approved exercises for corrective training in accordance with the TRADOC Regulation 350-6. The reprimand was filed temporarily in the applicant's local unit file. Military Police Report, dated 17 December 2011, reflects the applicant was apprehended for: Driving while license suspended (failure to enroll); Excessive speed (75 / 55 MPH); Failure to register firearm; Illegal transportation of a firearm; and Fail to obey general order (noncontrolled substance) (Article 92, UCMJ). Field Grade Article 15, dated 1 February 2012, for failing to obey a lawful regulation by wrongfully possessing Spice (17 December 2011). The punishment consisted of a reduction to E-4; forfeiture of $1,182 pay per month for two months; extra duty for 45 days; and restriction for 45 days (suspended). Memorandum, dated 5 June 2012, reflects the applicant was enrolled in the Army Substance Abuse Program on 19 December 2011, following the applicant's apprehension for possession of Spice on 1 December 2011. On 30 April 2012, the applicant was released from treatment and aftercare as a rehabilitation success. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: (1) Applicant Provided: A copy of Department of Veterans Affairs (VA) letter dated 22 August 2016, reflecting the applicant was receiving treatment at the VA outpatient clinic to address difficulties with anxiety, depression, and anger, which the applicant report stemming from the applicant's time in the service. (2) AMHRR Listed: Report of Medical Examination, dated 8 March 2012, the examining medical physician noted in the summary of defects and diagnoses section: Adjustment disorder, with depressed mood, and insomnia. Report of Mental Status Evaluation, dated 31 May 2012, 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 mild traumatic brain injury (mTBI) with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Adjustment disorder and synthetic cannabis abuse in reported remission. 5. APPLICANT-PROVIDED EVIDENCE: None submitted with the application. 6. POST SERVICE ACCOMPLISHMENTS: DD Form 149; DD Form 214; VA letter; two third party statements; and Army Review Boards Agency letter. 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 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant contends PTSD and other mental health conditions affected behavior which ultimately led to the discharge. The applicant provided medical documents indicating the applicant was treated to address difficulties with anxiety, depression, and anger, which the applicant reported stemmed from the applicant's time in the service. The applicant provided statements from the applicant's parents attesting to the applicant's behavior, demonstrating signs of mental illness. The AMHRR shows the applicant underwent a medical examination on 8 March 2012 and the medical physician noted as defects and diagnoses: Adjustment disorder, with depressed mood, and insomnia. The applicant underwent a mental status evaluation (MSE) on 31 May 2012, which indicates 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 applicant was diagnosed with adjustment disorder and synthetic cannabis abuse in reported remission. The MSE and mental examination were considered by the separation authority. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD, Adjustment Disorder, Bipolar Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was diagnosed in service with an Adjustment Disorder and is service connected by the VA PTSD. Service connection establishes that applicant's PTSD existed during military service. There is no evidence that applicant's post-service diagnosis of Bipolar Disorder existed during 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 is service connected by the VA for combat-related PTSD. While PTSD is a potentially mitigating BH condition, there is no natural sequelae between PTSD and any of the misconduct that led to applicant's separation to include improper corrective action of Soldiers in Training, speeding, driving on a suspended license, or an expired personal vehicle registration since PTSD does not interfere with the ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor's opine, the Board determined that the available evidence did not support a conclusion that the applicant's PTSD, Adjustment Disorder, or Bipolar Disorder outweighed the basis for applicant's separation - failure to adhere to training standards, speeding, driving with suspended license, possession of spice and unregistered weapon, and failed POV inspection - for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends PTSD and other mental health conditions affected behavior which ultimately led to the discharge. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that there is natural sequelae between the applicant's PTSD, Adjustment Disorder, or Bipolar Disorder and the applicant's misconduct which constitutes the basis for separation. (2) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant's PTSD, Adjustment Disorder, or Bipolar Disorder did not excuse or mitigate the offenses of the basis for applicant's separation - failure to adhere to training standards, speeding, driving with suspended license, possession of spice and unregistered weapon, and failed POV inspection. 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 to change the applicant's reason for discharge because, although the Board found the discharge proper and equitable and there were no BH diagnoses which mitigated the misconduct to warrant relief, it was found that there was an administrative error on the applicant's DD Form 214, thus making the current reason for discharge improper. The corrected reason for discharge will be Pattern of Misconduct. The SPD code associated with the new reason for discharge is JKA. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation and the applicant's BH conditions though not mitigating, are service limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD Code to: Pattern of Misconduct/JKA d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12b 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 AR20210002178 1