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 general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable and a RE-code change. The applicant, through counsel, seeks relief contending, in effect, being wrongfully deprived of the potential to contribute significantly to the Army. The applicant exhibited outstanding dedication to service and a penchant for military bearing and decorum. The charges levied against the applicant were not proven by the leadership beyond a reasonable doubt. The commissioned and non-commissioned officers had divested themselves of their rank and office, because of toxic and abusive leadership. The applicant was forced into such extreme emotional distress and did not have the capacity to appreciate the criminality of violations. The applicant can no longer provide for family because of this isolated incident, and the present characterization of the discharge will completely limit the applicant from accomplishing the applicant’s career and educational goals. b. Board Type and Decision: In a records review conducted on 18 January 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 20 February 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 3, dated 9 January 2015, on 6 September 2012, the applicant was found guilty of the following: Charge I: Violating Article 89, UCMJ, Specification 1 and 3: On 30 March 2012, for being disrespectful toward a superior commissioned officer. Charge II: Violating Article 90, UCMJ, Specification: On 30 March 2012, for willfully disobeying a lawful command from a superior commissioned officer. Charge III: Violating Article 91, UCMJ, Specification 1 and 5: On 30 March 2012, willfully disobeying lawful orders from a non- commissioned officer. Specification 3 and 6: On 30 March 2012, disrespectful in deportment and disrespectful language toward a non-commissioned officer. Specification 4: On 30 March 2012, striking a non-commissioned officer. Charge IV: Violating Article 134, UCMJ, Specification 2: On 30 March 2012, for being drunk and disorderly bring discredit upon the armed forces. (2) Adjudged Sentence: Reduction to E-1; to be confined for 90 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 9 January 2015 / Only so much of the sentence, a reduction E-1, confinement for 90 days, and a bad conduct discharge was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 11 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 9 January 2015 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2008 / 3 years b. Age at Enlistment / Education / GT Score: 41 years / Bachelor’s Degree / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68X10, Mental Health Specialist / 10 years, 9 months d. Prior Service / Characterizations: RA, 14 January 1986 – 29 August 1989 / HD (Break in Service) RA, 20 September 2000 – 9 November 2002 / UNC (Break in Service) ARNG, 26 September 2007 – 25 September 2008 / HD (Break in Service) e. Overseas Service / Combat Service: Hawaii, Korea, SWA / Iraq (7 April 2011 – 25 May 2011) f. Awards and Decorations: AAM-3, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR-2 / The applicant’s AMHRR reflects service in Korea, however, award of the KDSM is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Personnel Action form reflects the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Confined by Military Authorities (CMA)” effective 6 September 2012. Four Developmental Counseling Forms, for monthly counseling. Orders 044-1308, dated 13 February 2015, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 20 February 2015 from the Regular Army. The applicant’s DD Form 214 reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, Chapter 3, with a narrative reason of Court-Martial (Other). The DD Form 214 was not authenticated with the applicant’s electronic signature. The applicant had lost time for the period 6 September 2012 to 8 November 2012. i. Lost Time / Mode of Return: 63 days (CMA, 6 September 2012 – 8 November 2012) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 18 January 2012, reflects the applicant was diagnosed with Routine Military Stressors, Occupational difficulties, Interpersonal difficulties. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures A through N; Enlisted Record Brief; third-party letters; case separation packet; medical records; copies of military personnel records; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant worked as a corrections officer and a bank teller; and volunteered for charitable organizations helping domestic violence victims. 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), dated 25 September 2019, 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. 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 “JJD” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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’s Army Military Human Resource Record (AMHRR) indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends the discharge was unfair because of toxic and abusive leadership in the command. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. There is no evidence in the AMHRR the applicant sought assistance or reported the toxic and abusive leadership. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends extreme emotional distress and did not have the capacity to appreciate the criminality of violations. The applicant provided a Chronological Record of Medical Care, reflecting the applicant was diagnosed with Routine Military Stressors, Occupational difficulties, Interpersonal difficulties to support the contention of behavioral health conditions. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant’s AMHRR is void of a mental status evaluation. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service, including a combat tour. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned a RE code of “4.” A RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct before and after leaving the Army. The applicant contends obtaining employment and volunteering in the community. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 and/or civilian provider documentation and found that the applicant did not and does not hold a behavioral health diagnosis or have a liberal consideration experience during this term of service. However, the applicant asserts emotional distress rendered her incapable of understanding what she was doing. Of note, during the first term of service, 1989, applicant reported IPV and MST with diagnoses of Adjustment Disorder and Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts emotional distress during this term of service, no specific diagnosis noted. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. While liberal consideration was applied, and the 1989 MST and IPV are acknowledged, the Board’s Medical Advisor, a voting member, opined that the applicant’s basis for separation is not mitigated. Specifically, the applicant excelled for a decade after the experiences before re-enlisting, passed a re-enlistment exam, and asserts doing well until the events leading to the basis for separation. The applicant was not impaired or impacted by the prior experiences. Rather, the applicant’s misconduct aligns with the prior Personality Disorder diagnosis. Personality Disorders provide context but are not mitigating as the individual is aware of their actions and consequences. Moreover, documentation outlines purposeful actions with justification, and the applicant was engaging in cognitive processing. (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 prior enlistment diagnoses and experiences of MST, IPV, Adjustment Disorder, and Personality Disorder. outweighed the basis for applicant’s separation – disrespect, disobedience, striking of a noncommissioned officer, and being drunk and disorderly – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the discharge was unfair because of toxic and abusive leadership in the command. The Board considered this contention but determined that there was insufficient evidence supplied by the applicant or counsel to support the merit to this claim. There is no evidence of the applicant seeking assistance prior to committing the misconduct. (2) The applicant contends having extreme emotional distress and did not have the capacity to appreciate the criminality of the violations. The Board considered this contention but determined that evidence in the applicant’s medical record, as outlined in paragraph 9a(3), contradicts this contention. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and determined that while an isolated incident was used as the basis for separation, the nature of the event and lack of sufficient mitigating circumstances for consideration did not warrant further clemency and the GD upgrade received from a prior Board is proper and equitable. (4) The applicant contends good service, 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. By disrespect, disobedience, striking of a noncommissioned officer, and being drunk and disorderly, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention but found insufficient evidence to support an upgrade to the RE-code. (6) The third-party statements provided with the application speak highly of the applicant. The Board considered the statements and took them into account along with the totality of the circumstances and the applicant’s service record but determined that no further clemency is warranted. (7) The applicant contends obtaining employment and volunteering in the community. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. In this case, the Board considered this contention and determined that the applicant’s post-service accomplishments did not outweigh the misconduct. (8) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined 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 diagnoses and experiences of MST, IPV, Adjustment Disorder, and Personality Disorder, which were not a factor as outlined in paragraph 9a(3), did not excuse or mitigate the offenses of disrespect, disobedience, striking of a noncommissioned officer, and being drunk and disorderly. 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. The applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (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 AR20210002439 1