1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge is unfavorable because it was the result of an untreated service-connected PTSD. The PTSD because of MST influenced the actions leading to the discharge. If having been diagnosed and treated while in the service, the applicant could have received a more favorable character of discharge. b. Board Type and Decision: In a records review conducted on 19 January 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, erroneously contains in block 25, "AR 635-200, PARA 14-12C"; block 26, "JKQ"; and block 28, "MISCONDUCT (SERIOUS OFFENSE)." In view of the error, the Board directed an administrative correction to block 25 to read AR 635-200, Chapter 14-12b, block 26 to read JKA, and block 28 to read Pattern of Misconduct, as required by Army Regulations. 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: 6 February 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 December 2008 (2) Basis for Separation: The applicant was informed of the following reasons: One CG Article 15 for violations of two Article 86, UCMJ, on 17 July 2008; one CG Article 15 for violations of two Article 92, UCMJ, and two Article 134, UCMJ, on 14 September, 24 September, and 25 September 2008, respectively; and one CG Article 15 on 10 December 2008, for violations of Articles 86, 107, and 134, UCMJ. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 December 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 December 2008 / General (Under Honorable Conditions) (Note: On 31 December 2008, the GCMCA approved the applicant's separation under the provisions of AR 635-200, Paragraph 14-12b, Pattern of Misconduct.) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 July 2005 / 4 years, 20 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 3 years, 6 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (29 April 2008 - 13 January 2009) f. Awards and Decorations: ARCOM, AGCM, NDSM, ACM, GWOTSM, KDSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Four Developmental Counseling Forms, for various acts of misconduct. CG Article 15, dated 22 July 2008, for without authority, being absent from place of duty on two separate occasions on 17 July 2008. The punishment consisted of a reduction to E-3 (suspended through appeal); forfeiture of $418 (suspended for 90 days through appeal); and extra duty for 14 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 2 August 2008, reflects the suspended portion of the punishment imposed on 22 July 2008, was vacated for violating: Article 86, failure to repair, on 28 July 2008. CG Article 15, dated 27 October 2008, for two violations of Article 92, UCMJ: being derelict in the performance of duties on 14 September 2008, by without proper authority willfully directing PV2 S's pay inquiry to be stopped and by willfully directing S-6 Shop to change PV2 S's password and give the password to the applicant on 14 September 2008; and two violations of Article 134, UCMJ, by willfully and unlawfully altering a public record on two separate occasions, to wit: PV2 S's ERB by adding a flagging action, removing college course work, and removing awards on 24 September 2008, and to SPC G's LES, by changing the rank to E-1 in the EMILPO system on 25 September 2008. The punishment consisted of a reduction to E-2; forfeiture of $352; and extra duty and restriction for 14 days. CG Article 15, dated 10 December 2008, for violating Article 86, UCMJ, by failing to go to the appointed place of duty on 11 November 2008, for violating Article 107, UCMJ, by making a false official statement to SSG T. C. on 11 November 2008, and for violating Article 134, UCMJ, by wrongfully soliciting PFC C. W. L. to commit an offense by making a false official statement on 11 November 2008. The punishment consisted of a reduction to E-1; forfeiture of $314; and extra duty for 14 days. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: The applicant provided a copy of a VA benefits entitlement decision letter, dated 6 March 2017, reflecting the applicant was rated 50 percent disability for PTSD with major depressive disorder (also claimed as depression). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and VA decision 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) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. (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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 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). g. 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 the discharge is unfavorable because it was the result of an untreated service-connected PTSD, and the PTSD because of MST influenced the actions leading to the discharge. The applicant provided a VA benefits entitlement letter, which indicated the applicant was in receipt of a compensatory evaluation for a diagnosis of 50 percent disability for PTSD with major depressive disorder (also claimed as depression). The applicant's AMHRR is void of a mental status evaluation, or the applicant having sought assistance or having reported the MST incident. The 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: MST, Adjustment Disorder, Depression, Unspecified Trauma and Stressor-Related Disorder, PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and Depression, and the applicant is service connected by the VA for Unspecified Trauma and Stressor-Related Disorder related to an MST. Service connection establishes that applicant experienced an MST during military service. Applicant has also been diagnosed post-service by the VA with PTSD, however, there is no evidence that applicant met the criteria for PTSD during military service. (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 an Adjustment Disorder and Depression, and the applicant is service connected by the VA for Unspecified Trauma and Stressor-Related Disorder related to an MST, which provides partial medical mitigation. Given the nexus between trauma related to an MST and avoidance, applicant's experience of MST may have contributed to the FTRs. However, there is no natural sequela between trauma, MST, or any of the applicant's other BH conditions and being derelict in the performance of duties, making a false official statement, or soliciting another Soldier to make a false official statement since none of these conditions impact one's ability to distinguish between right and wrong and act in accordance with the right. (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, and determined that while the applicant's MST, Adjustment Disorder, Depression, Unspecified Trauma and Stressor-Related Disorder mitigate the applicant's FTR misconduct, the available evidence did not support a conclusion that the applicant's BH conditions outweighed the remaining basis for applicant's separation - derelict in the performance of duties, making a false official statement, and soliciting another Soldier to make a false official statement - for the aforementioned reasons. b. Response to Contention(s): The applicant contends the discharge is unfavorable because it was the result of an untreated service-connected PTSD, and the PTSD because of MST influenced the actions leading 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 the applicant is not service connected for PTSD. The Board further determined, after weighing the totality of the evidence, that while the applicant's MST, Adjustment Disorder, Depression, Unspecified Trauma and Stressor-Related Disorder conditions are partially mitigating, the applicant's misconduct of being derelict in the performance of duties, making a false official statement, and soliciting another Soldier to make a false official statement is not outweighed. c. The Board found that the applicant's DD Form 214, erroneously contains in block 25, "AR 635-200, PARA 14-12C"; block 26, "JKQ"; and block 28, "MISCONDUCT (SERIOUS OFFENSE)." In view of the error, the Board directed an administrative correction to block 25 to read AR 635-200, Chapter 14-12b, block 26 to read JKA, and block 28 to read Pattern of Misconduct, as required by Army Regulations. 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, and while the applicant's MST, Adjustment Disorder, Depression, Unspecified Trauma and Stressor-Related Disorder mitigate the applicant's FTR misconduct, the available evidence did not support a conclusion that any of the applicant's BH conditions outweighed the remaining basis for applicant's separation - derelict in the performance of duties, making a false official statement, and soliciting another Soldier to make a false official statement. 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 found that the applicant's DD Form 214, erroneously contains in block 25, "AR 635-200, PARA 14-12C"; block 26, "JKQ"; and block 28, "MISCONDUCT (SERIOUS OFFENSE)." In view of the error, the Board directed an administrative correction to block 25 to read AR 635-200, Chapter 14-12b, block 26 to read JKA, and block 28 to read Pattern of Misconduct, as required by Army Regulations. (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 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 AR20210002371 1