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 Under Other Than Honorable Conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, overall, the applicant was a satisfactory Soldier, who was awarded a certificate of appreciation for exceptional maintenance support to the 3rd Brigade Military Transition Team, and was promoted to PFC in February 2008, the same year of a deployment to Iraq. The events leading to the discharge were the result of several weeks of sleep deprivation from being on guard duty, abuse by roommates, and the chain of command’s failure to act and help with staying healthy and functioning as a Soldier. The applicant had reached a breaking point and regrets the actions where no one was hurt. The applicant further details the contentions in an allied self-authored statement provided with the application. Counsel on behalf of the applicant contends the applicant as a veteran has been denied VA benefits. The discharge is unjust because it was caused by PTSD and other facts which rendered the applicant disabled. The applicant had a clean record of mental health at enlistment. War time caused the PTSD and the ultimate discharge. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 30 October 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 August 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant assaulted a Soldier with an M16A2 rifle, communicated a threat to a Soldier to shoot the Soldier, damaged military property by stabbing the CHU wall with a knife during an argument, and on several occasions, failed to go at the time prescribed to the appointed place of duty. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 23 August 2008 (5) Administrative Separation Board: On 23 August 2008, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 12 September 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 March 2006 / 4 years, 24 weeks b. Age at Enlistment / Education / GT Score: 20 / GED / 120 c. Highest Grade Achieved / MOS / Total Service: E-3 / 63B10, Wheeled Vehicle Mechanic / 2 years, 7 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (8 November 2007 – 1 August 2008) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Six Developmental Counseling Forms for various acts of misconduct. Record of Trial by Summary Court-Martial, reflects the applicant was arraigned on 23 August 2008, on the following charges, and the pleas and findings were, guilty to all charges: Charge I: Four Specifications of violating Article 86, UCMJ, failing to go at the time prescribed to the appointed place of duty on four separate occasions. Charge II: violating Article 108, UCMJ, damage to military property of a sum less than $500. Charge III: violating Article 128, UCMJ, assault by aiming a firearm at PV2 S. Charge IV: violating Article 134, communicate a threat by threatening to shoot PV2 S. The sentenced adjudged: Reduction to E-1; forfeiture of $1,006 pay; and hard labor without confinement for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation (BHE), dated 23 August 2008, reflects the applicant was mentally responsible with a clear- thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant was diagnosed with: Attention Deficit Disorder and Paranoid Personality Traits. The BHE was considered by the separation authority. The applicant provided copies of Chronological Records of Medical Care, dated 1 September 2007, reflecting health issues of an adjustment disorder, adjustment disorder with depressed mood, attention deficit/hyperactivity disorder; and 17 July 2008, reflecting Axis I diagnosis as “Depressive Disorder NOS” and “Attention Deficit Hyperactivity Disorder”; and Axis II diagnosis as “Immature Traits” and “Paranoid Traits.” The applicant DD Form 293 asserts PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; a third-party statement; and DD Form 214. Additional Evidence: Radiologic Examination Report; three Chronological Records of Medical Care; and Report of BHE. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (7) 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) of service, the issues, and documents submitted with the application were carefully reviewed. The applicant contends good service with being an overall satisfactory Soldier who was recognized for exceptional maintenance support and promoted, including a combat tour. The Board considered the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the events leading to the discharge were the result of weeks of sleep deprivation and the chain of command’s failure to act and help the applicant with staying healthy and functioning as a Soldier. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being denied VA benefits and an upgrade of the discharge would allow veterans’ benefits. Eligibility for veterans’ 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. The applicant contends war time caused PTSD and the ultimate discharge. The applicant provided several medical documents indicating diagnoses of an adjustment disorder with depressed mood and attention deficit/hyperactivity disorder, and prescribed medication. The applicant’s AMHRR contains no documentation of a PTSD diagnosis, and the applicant did not submit any evidence of a PTSD diagnosis, other than the applicant’s statement, to support the contention the discharge resulted from PTSD. The AMHRR shows the applicant underwent a behavioral health evaluation (BHE) on 23 August 2008, which indicates the applicant was mentally responsible and recognized right from wrong. The BHE was considered by the separation authority. The third-party statement provided with the application speak highly of the applicant’s character and performance. 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, Depression and asserted PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant Adjustment Disorder, Depression, and self-asserted PTSD existed during the applicant’s military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant Adjustment Disorder and Depression mitigate the applicant FTR offenses as there is a nexus between adjustment disorder/depression and avoidance. However, none of the applicant’s behavioral health conditions mitigate the applicant’s offenses of assault, communicating a threat, or damaging military property as there is no natural sequala between Depression, or asserted PTSD and these offenses. Further, the applicant did not provide any corroborating medical evidence to support the applicant’s contention of asserted PTSD. Rather, the evidence the applicant provided supported the applicant’s diagnosis of Depression. (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 the FTRs, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Depression, or asserted PTSD outweighed the medically unmitigated basis for applicant’s separation – assault, communicating a threat, and damaging military property. b. Response to Contention(s): (1) The applicant contends good service with being an overall satisfactory Soldier who was recognized for exceptional maintenance support and promoted, including a combat tour. 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. The applicant diminished the quality of service below that meriting an honorable discharge at the time of separation by engaging in assault, communicating a threat, and damaging military property. (2) The applicant contends the events leading to the discharge were the result of weeks of sleep deprivation and the chain of command’s failure to act and help the applicant with staying healthy and functioning as a Soldier. The Board considered this contention and found that there is insufficient evidence in the applicant’s AMHRR or provided by the applicant to support that the applicant’s command took any arbitrary or capricious action. Accordingly, the Board found that the discharge was proper and equitable. (3) The applicant contends being denied VA benefits and 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 (4) The applicant contends war time caused PTSD, which ultimately led to the discharge. The Board considered this contention and the totality of the record and determined that while the applicant’s BH conditions mitigate the FTRs, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Depression, or asserted PTSD outweighed the medically unmitigated basis for applicant’s separation – assault, communicating a threat, and damaging military property. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 the FTRs, the available evidence did not support a conclusion that the applicant’s Adjustment Disorder, Depression, or asserted PTSD outweighed the medically unmitigated basis for applicant’s separation – assault, communicating a threat, and damaging military property. The Board did not consider any issues of impropriety as the applicant did not present any impropriety issue for the Board's consideration. Further, there is insufficient evidence of any arbitrary or capricious action taken by Command resulting in 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 Under Other Than Honorable Conditions was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (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 AR20210002222 1