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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, an upgrade is requested because the diagnosis of PTSD was the contributing factor to the discharge. Because of the PTSD, the applicant became involved in an incident which led to being reduced in rank prior to the discharge. The applicant contends the discharge was erroneous because the medical condition was not considered prior to the discharge. b. Board Type and Decision: In a records review conducted on 9 February 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 2 November 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 14 October 2016 / Under Other Than Honorable Conditions: On 14 October 2016, the General Court-Martial Convening Authority (GCMCA), carefully considered and disapproved the recommendations of the Medical Evaluation Board, and determined the applicant’s medical condition was not the direct or substantial contributing cause of the misconduct, consisted with the Soldier’s assertions in the memorandum, dated 16 September 2016 (NIF), and no other circumstances of the Soldier’s case warranted disability processing instead of the administrative separation. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 May 2012 / 4 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31B10 2B, Military Police / 6 years, 9 months, 20 days d. Prior Service / Characterizations: RA, 13 January 2010 – 3 May 2012 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (23 May 2011 – 21 May 2012) f. Awards and Decorations: ACM-CS, ARCOM, AAM-2, AGCM, NDSM, GWOTSM, NCOPDR, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided the following: Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement, dated 11 April 2016, reflects: the applicant’s medical conditions/limitations affect unit accomplishments; the applicant was unable to perform duties as a Military Police Soldier and unable to draw and qualify with assigned weapons, and deemed unable to performance law enforcement duties because of PTSD; and the applicant was being separated for commission of a serious offense for an incident taking place off-post in Lampasas, Texas, and had two alcohol involved incidents within an 18-month period. The Statement further reflected the applicant required NCO supervision for most tasks and worked hard to complete simple tasks, but because of the PTSD, the applicant was on the no-draw list and unable to qualify with assigned weapon. Medical Evaluation Board Proceedings, dated 29 April 2016, reflects because of the PTSD, the applicant did not meet retention standards according to AR 40-501, paragraphs 3-33b, c, and referred to a Physical Evaluation Board (PEB). IDES Medical NARSUM reflects, in pertinent part, the “medical basis for the diagnosis of PTSD is VA C&P Medical Examination, and the condition had been evaluated by the applicant’s PCP, Psychology and Psychiatric Clinic, Social Work Clinic, ASAP and treated with both individual and group therapy, and medication management. Progress Notes, dated 9 April 2016, reflects the current diagnosis of PTSD was evaluated at 50 percent by the Army. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; PDES Commander’s Performance and Functional Statement; Assumption of Command memorandum; ETS change update screen; LES (February 2016); monthly counseling statements; Medical Evaluation Board Proceedings; IDES Medical NARSUM; Part of VA form for benefits; Progress Notes; and ARBA CMD letter. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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 Army Military Human Resource Record (AMHRR) of service, the issues, and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the complete specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated with the applicant’s electronic signature. The applicant’s DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, SEC II, by reason of Misconduct (Civil Conviction), with a characterization of service of under other than honorable conditions. The applicant contends the diagnosis of PTSD was the contributing factor to the discharge, and the PTSD caused the applicant to become involved with an issue which led to being reduced in rank prior to the discharge. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD. The AMHRR shows the applicant underwent a medical evaluation board process at the time of the separation proceedings. 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 MEB’s recommendation was considered by the separation authority. The applicant contends the discharge was erroneous because the medical condition was not considered prior to the discharge. The applicant’s AMHRR contains the General Court-Martial Convening Authority (GCMCA) decision, which reflected the GCMCA carefully considered and disapproved the recommendations of the Medical Evaluation Board upon determining the applicant’s medical condition was not the direct or substantial contributing cause of the misconduct, consisted with the Soldier’s assertions in a memorandum not available, and upon further determining no other circumstances of the Soldier’s case warranted disability processing instead of the administrative separation. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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, Major Depressive Disorder, Anxiety, and 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 PTSD, Major Depressive Disorder, Anxiety, and an Adjustment Disorder, and applicant’s PTSD is service connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with PTSD, Major Depressive Disorder, Anxiety, and an Adjustment Disorder, and applicant’s PTSD is service connected by the VA. Medical records indicate that the civil charges included public intoxication, criminal trespass with a deadly weapon, and resisting arrest. Given the nexus between PTSD/MDD and self-medicating with substances, applicant’s PTSD/MDD may have contributed to the substance-related misconduct that led to applicant’s separation, which should be considered by the Board. However, there is no medical mitigation for weapons charges due to no natural sequela with any of applicant’s 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 PTSD, Major Depressive Disorder, Anxiety, and Adjustment Disorder outweighed the basis for applicant’s separation – public intoxication, criminal trespass with a deadly weapon, and resisting arrest – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the diagnosis of PTSD was the contributing factor to the discharge. The Board considered this contention and determined applicant’s PTSD does not mitigate or excuse applicant’s misconduct of criminal trespass with a deadly weapon and resisting arrest. Therefore, the applicant was properly and equitably discharged. (2) The applicant contends the discharge was erroneous because the medical condition was not considered prior to the discharge. The Board considered this contention and determined applicant’s PTSD partially mitigates applicant’s misconduct of public intoxication, but PTSD does not mitigate or excuse applicant’s misconduct of criminal trespass with a deadly weapon and resisting arrest. 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 did not excuse or mitigate the offenses of criminal trespass with a deadly weapon and resisting arrest. 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 AR20210002294 1