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, was separated after being wrongfully accused of misconduct and received retaliation/reprisal due to EO/IG complaints the applicant filed against the unit. The applicant was in the MEB process and was found unfit for duty for five medical disqualifiers including PTSD. The applicant is currently 100 percent permanent and total from the VA. The applicant respectfully requests all the attachments be reviewed and an honorable discharge be granted and the MEB be reinitiated. b. Board Type and Decision: In a records review conducted on 20 April 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 April 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 August 2015 (2) Basis for Separation: The notification of initiation of separation proceedings is void from the Army Military Human Resource Record. However, the applicant provided a copy of the initiation of separation proceeding, which shows the specific reasons for separation as: The applicant received a lawful command from Captain W., to return Private First-Class C’s., vehicle to the brother, or words to effect, on or about 18 July 2015. On several occasions between on or about 1 July 2014 and on or about 30 June 2015, violate a lawful general regulation, by wrongfully traveling outside of the 100-mile radius of appointed place of duty without an approved mileage pass. On or about 18 July 2015, wrongfully communicate to N., a threat to shoot N., if N., came anywhere near the applicant’s house, such conduct being prejudicial to good order and discipline in the armed forces. On or about 1 July 2014 and on or about 30 April 2015, convince Soldiers newly arrived at Fort Bragg, North Carolina, to pay the applicant a “finder’s fee” in an amount from $100 to $500 in return for the applicant’s help in purchasing a motor vehicle from automotive dealer’s located in Virginia, such conduct being to the prejudice of good order and discipline in the armed forces. (3) Recommended Characterization: Under Other Than Honorable Conditions The intermediate commanders recommended a General (Under Honorable Conditions) Discharge and Under Other Than Honorable Conditions. (4) Legal Consultation Date: 28 August 2015 (5) Administrative Separation Board: On 30 September 2015, the applicant was notified to appear before an administrative separation board and advised of rights. On 9 November 2015, the administrative separation board convened, and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable. The Board found two out of the four allegations were supported by a preponderance of evidence and warranted separation On 17 March 2016, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 17 March 2016 / General (Under Honorable Conditions) / The Separation Authority reviewed the administrative separation, administrative separation board proceedings, and medical evaluation board documents pertaining to the applicant and find’s the Soldier’s medical condition is not the direct or substantial contributing cause of conduct which led to the recommendation of administrative separation. / The Soldier was screened for Post-Traumatic Stress Disorder (PTSD) and Mild Traumatic Brain Injury (mTBI). The Soldier tested positive for PTSD; and was cleared for administrative proceedings but subsequently this same condition was recognized as a service disqualifying condition through the medical evaluation board process. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 April 2010 / 6 years b. Age at Enlistment / Education / GT Score: 28 / High School Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y1P, Unit Supply Specialist / 11 years, 5 months, 8 days d. Prior Service / Characterizations: USN, 18 November 2003 – 17 July 2008 / HD RA, 12 November 2008 – 25 April 2010 / HD e. Overseas Service / Combat Service: Africa (13 November 2007 – 13 July 2008) f. Awards and Decorations: ARCOM, AAM, USNAM, AGCM-2, USNGCM, NDSM, GWOTEM, GWOTSM, HSM, NCOPDR, ASR, USNSSDR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum for Commander, Notification of Informal Equal Opportunity Complaint dated 11 June 2015, reflects the applicant filed a complaint against chain of command on 10 June 2015. Stating the applicant perceives there is racial discrimination within the unit. The applicant stated two NCOs made disparaging comments to the applicant over a year ago and wants to address the unit about these concerns. The applicant has not received a counseling for more than a year and does not have a first line supervisor who trains develops or mentors the applicant for advancement. Memorandum For Record Open Door Policy, dated 6 August 2015, the Equal Opportunity Advisor (EOA) spoke with the applicant about using the open-door policy to speak with the CSM W., about recent matters which have occurred. The applicant discussed recent UCMJ action and the issues the applicant believes the chain of command is out to find anything they can use to have the applicant chaptered from the Army. The applicant does not want to be chaptered from the Army, in fact, requested an appeal on the UCMJ received and requested a rehabilitative transfer to another Battalion within the Brigade so the applicant could be given a fair chance for progression despite the UCMJ the applicant received. The EOA recommended the applicant a month prior in June 2015. The EOA continued to recommend the applicant be transferred to another unit allow the applicant a fair chance to continue career progression. Memorandum For Record Reprisal and Retaliation dated 28 August 2015, reflects, Sergeant First Class J., was informed by the applicant a negative counseling was given by 1LT A., regarding improperly informing the chain of command about all upcoming appointments. The applicant provided SFC J., copies of these counseling’s and a doctor’s note for emergency dental sick call for an infected tooth which has been bothering the applicant. The counseling’s were not signed by the direct supervisor stating the leadership’s responsibilities in these matters. The EOA, SFC J. reported the matter to CSM W., who contacted 1SG G. to have the applicant moved to another unit by the end of the day. CSM W. informed 1SG G. the counseling’s could be viewed as a form of reprisal. DA Form 4856, Developmental Counseling Form dated 28 August 2015, reflects, the applicant was counseled for failure to inform chain of command of appointments as soon as they were made. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Medical Evaluation Board Proceedings, dated 26 February 2016, which reflect the following diagnosis: PTSD/Unspecified depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; DA Form 3947; separation packet. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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 14-12c 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends being in the MEB process and was found unfit for duty for five medical disqualifiers to include PTSD. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member’s medical record. The applicant contends the MEB should be reinitiated. The applicant’s request does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. A DD Form 149 may also be obtained from a Veterans’ Service Organization. The applicant contends being wrongfully accused of misconduct and received retaliation/ reprisal due to EO/IG complaints the applicant filed against unit. A memorandum, dated 11 June 2015, reflects the applicant filed a complaint against chain of command on 10 June 2015, stating the applicant perceived there was racial discrimination within the unit. The applicant stated two NCOs made disparaging comments to the applicant over a year ago and wants to address the unit about these concerns. The applicant has not received a counseling for more than a year and does not have a first line supervisor who trains develops or mentors the applicant for advancement. The EOA spoke with the applicant about using the open-door policy to speak with the CSM W., about recent matters which have occurred. The applicant discussed recent UCMJ action and the issues the applicant believes the chain of command is out to find anything they can use to have-the applicant chaptered from the Army. The EOA, brought this issue to CSM W., and the CSM contacted 1SG G., while the EOA, was present in the office stated the applicant was to be moved to D Troop 5-73rd by the end of the day. CSM W., also informed 1SG G., these counseling’s could be viewed as a form of reprisal and picking at the applicant. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The documents were considered by the Separation Authority. The applicant contends receiving 100 percent permanent and total disability disabled from the VA. The applicant provided a copy of Medical Evaluation Board Proceedings, dated 26 February 2016, which reflect the following diagnosis: PTSD/Unspecified depressive disorder. The AMHRR is void of a mental status evaluation. 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: Anxiety, TBI, PTSD, Unspecified Depressive 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 PTSD, TBI, and Anxiety. Applicant is service connected by the VA for PTSD and Unspecified Depressive Disorder. (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 was diagnosed in service with PTSD, TBI, and Anxiety. Applicant is service connected by the VA for PTSD and Unspecified Depressive Disorder. Applicant’s BH conditions provide partial mitigation. Given the nexus between PTSD and difficulty with authority, applicant’s PTSD likely contributed to violating a lawful command. However, there is no natural sequela between any of applicant’s BH conditions and the remaining misconduct of traveling outside of the approved radius, communicating a threat, or taking financial advantage of new Soldiers since none of the conditions 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 opine, the Board determined that while the applicant’s BH conditions mitigate violating a lawful command, the available evidence did not support a conclusion that the applicant’s Anxiety, TBI, PTSD, Unspecified Depressive Disorder outweighed the remaining medically unmitigated basis for applicant’s separation – traveling outside of the approved radius, communicating a threat, and taking financial advantage of new Soldiers – for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends being in the MEB process and was found unfit for duty for five medical disqualifiers to include PTSD, and that the MEB should be reinstated. The Board determined that the applicant’s requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization (2) The applicant contends being wrongfully accused of misconduct and received retaliation/reprisal due to EO/IG complaints the applicant filed against unit. The Board considered this contention and determined that while using the EOA and CSM’s acknowledgement that the AUG 2015 counseling by the 1LT serving as the Rear Detachment OIC could be considered reprisal, the board found that possible reprisal existed. Acknowledging possible reprisal gives this contention merit. To the contrary, the board came to a similar conclusion as the ADMIN SEP Board when determining how much weight to give the possible reprisal. The board decided that even if the reprisal was founded it would not make those four charges of misconduct untrue or inaccurate. Ultimately, the Board found that any possible error is harmless considering the totality of circumstances and does not outweigh the nature and severity of the medically unmitigated misconduct. (3) The applicant contends receiving 100 percent permanent and total disability from the VA. 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 the applicant’s original MEB recommendation was heavily considered by the SA. The SA then overruled the characterization recommendations of both the ADMIN SEP Board and the entire CoC. The SA separated the applicant with a GD instead of the unanimously recommended UOTH. According to the medical opine, the post service VA medical conditions included the PTSD and unspecified depressive disorder similar to what applicant had diagnosed in service and none of it medically mitigated the misconduct. The board determined that the GD characterization was still proper and equitable after consideration of the totality of the record, including the misconduct used as the basis for 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, while the applicant’s BH conditions mitigate violating a lawful command, the available evidence did not support a conclusion that the applicant’s Anxiety, TBI, PTSD, Unspecified Depressive Disorder outweighed the remaining medically unmitigated basis for applicant’s separation – traveling outside of the approved radius, communicating a threat, and taking financial advantage of new Soldiers. The Board further found there is insufficient evidence of any arbitrary or capricious action taken by Command resulting in anything other than harmless error, and no mitigating factors that give rise to any inequity. 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, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. ? 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL – Absent Without Leave AMHRR – Army Military Human Resource Record BCD – Bad Conduct Discharge BH – Behavioral Health CG – Company Grade Article 15 CID – Criminal Investigation Division ELS – Entry Level Status FG – Field Grade Article 15 GD – General Discharge HS – High School HD – Honorable Discharge IADT – Initial Active Duty Training MP – Military Police MST – Military Sexual Trauma N/A – Not applicable NCO – Noncommissioned Officer NIF – Not in File NOS – Not Otherwise Specified OAD – Ordered to Active Duty OBH (I) – Other Behavioral Health (Issues) OMPF – Official Military Personnel File PTSD – Post-Traumatic Stress Disorder RE – Re-entry SCM – Summary Court Martial SPCM – Special Court Martial SPD – Separation Program Designator TBI – Traumatic Brain Injury UNC – Uncharacterized Discharge UOTHC – Under Other Than Honorable Conditions VA – Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002202 1