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, admitting to wrong doings. The applicant went through depression and some bullying by a superior officer. The applicant was hospitalized while stationed at Fort Drum and went through a series of mental counselling classes, anger management, alcohol abuse and personality classes. Since separation from the Army, the applicant has seen a psychiatrist and a spiritual counselor and has made great strides in bettering oneself. The applicant was a troubled Soldier and went through extreme stress and depression while stationed at Fort Drum. The applicant asked for help several times and asked for a rehabilitative transfer to save the applicant’s career. The commanding officer did not grant a rehabilitative move, and after a series of events which the applicant accepts responsibility, the applicant was separated. This sent the applicant into a very stressful state and was in much trouble right after being separated. Since the separation, the applicant has straightened out the applicant’s situation and has attended college, raised a child who is now a Marine, has held a very rewarding job, and sought mental and spiritual help. The applicant is proud of the strives made and is continuing a very productive life. If an upgrade is approved, the applicant would use it for better career opportunities. b. Board Type and Decision: In a records review conducted on 22 September 2022, 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: 27 June 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 May 2006 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana between on or about 20 September and 19 October 2005. The applicant had numerous counts of misconduct which includes three Article 15’s and a Summary Court-Martial. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 18 May 2006 (5) Administrative Separation Board: On 18 May 2006, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 7 June 2006, the applicant’s conditional waiver was denied. On 9 June 2006, the applicant was notified to appear before an administrative separation board and advised of rights. On 21 June 2006, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 21 June 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 March 2004 / 4 years b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 2 years, 3 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 2 June 2005, for willfully disobey a lawful order from an NCO on or about 21 March 2005 and on or about 30 March 2005; treat with contempt and was disrespectful in language and deport toward an NCO on or about 30 March 2005; unlawfully strike J. L. C. on the face with fist and open hand on or about 13 April 2005; disorderly on or about 13 April 2005; and, drunk and disorderly on or about 30 March 2005. The punishment is NIF. Military Police Report, dated 10 July 2005, reflects the applicant was charged with Aggravated Assault (Article #128, UCM) (On Post) and Unlawful Entry (On Post). It was reported the applicant entered M.’s barracks room without permission several times. When M. confronted the applicant, a verbal altercation took place which became physical when the applicant struck and clawed M. with the fingernails on the arm. The applicant then produced a knife and threatened to use it on M., waving it in a threatening manner. The applicant was located, apprehended and transported to the police station where the applicant was advised of rights which the applicant first waived and then invoked. A search was conducted to find the knife which met with negative results. The applicant was released on a 2708 to the unit. Both the applicant’s and police vehicle were searched prior to and after transport with negative results. Military Protective Order, dated 11 July 2005, reflects the applicant was restrained from initiating any contact or communication with PFC B. M. FG Article 15, dated 14 September 2005, for wrongfully use provoking words and gestures towards Military Police Investigator H. on or about 10 July 2005. The punishment is NIF. Electronic Copy of DD Form 2624, dated 27 October 2005, reflects the applicant tested positive for THC 41, during a Probable Cause (PO) urinalysis testing, conducted on 19 October 2005. CID Report of Investigation, dated 9 November 2005, reflects probable cause existed to believe the applicant committed the offense of Wrongful Use of Marihuana, when the applicant tested positive for the presence of THC during a command directed urinalysis conducted on 19 October 2005. FG Article 15, dated 29 March 2006, for failing to go at the time prescribed to the appointed place of duty on or about 10 February and 3 March 2006. The punishment consisted of a forfeiture of $636 pay per month for two months; extra duty and restriction for 45 days; and Oral reprimand. Record of Trial by Summary Court-Martial, dated 4 May 2006, reflects the applicant was found guilty of two specifications of violating Article 86 failing to go at the time prescribed to the appointed place of duty on or about 13 April 2006; and one specification of violating Article 91 willfully disobey an NCO on or about 13 April 2006. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 26 May 2005, reflects the applicant admitted the applicant has anger management issues for which the applicant is receiving treatment, the applicant denied plan to harm oneself or others. Report of Mental Status Evaluation, dated 17 November 2005, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with occupational problem, polysubstance abuse. It was noted Soldier is currently receiving supportive counseling from Behavioral Health and should be allowed to continue with this service while in the Army. Report of Medical History, dated 7 December 2005, the examining medical physician noted in the comments section: Receiving counseling for stress/anger management. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; third-party letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has attended college, raised a child who is now a Marine, held a very rewarding job, and has sought mental and spiritual help. 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 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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. The applicant contends suffering from stress and depression. The record shows the applicant underwent a mental status evaluation (MSE) on 17 November 2005, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with occupational problem, polysubstance abuse. It was noted Soldier is currently receiving supportive counseling from Behavioral Health and should be allowed to continue with this service while in the Army. The MSE was considered by the separation authority. The applicant contends being bullied by a superior officer. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. There is no evidence in the Army Military Human Resource Record (AMHRR) the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends asking for help several times from the chain of command and requesting a rehabilitative transfer. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s good conduct after leaving the Army. The applicant has attended college, raised a child who is now a Marine, held a very rewarding job, and has sought mental and spiritual help. 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. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: Adjustment Disorder and applicant asserted depression. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant asserts having Depression at the time of service and was diagnosed in service with an Adjustment Disorder. The VA has not service connected any BH conditions. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that while applicant self- asserts Depression, the medical documentation does not support this assertion. Applicant’s only in service diagnosis is an Adjustment Disorder that was made following the misconduct that led to separation and there is no evidence that the Adjustment Disorder contributed to any of the misconduct that led to applicant’s separation; therefore, there is no medical mitigation. (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 adjustment disorder and applicant asserted depression outweighed the basis for applicant’s separation – marijuana use, disobedience, contempt, disrespect, slapping a Soldier, provoking words and gestures, FTRs, aggravated assault and unlawful entry– for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the applicant’s narrative reason for discharge is appropriate as the applicant was separated for marijuana use, disobedience, contempt, disrespect, slapping a Soldier, provoking words and gestures, FTRs, aggravated assault and unlawful entry. The applicant was properly and equitably discharged. (2) 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. (3) The applicant contends suffering from stress and depression. The Board considered this contention and the applicant’s assertion of depression, however the Board determined that there is no evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. (4) The applicant contends being bullied by a superior officer. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient supporting evidence in the file and the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board determined the applicant was properly and equitably discharged. (5) The applicant contends asking for help several times from the chain of command and requesting a rehabilitative transfer. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that there is insufficient supporting evidence in the file and the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board determined the applicant was properly and equitably discharged. (6) The applicant has attended college, raised a child who is now a Marine, held a very rewarding job, and has sought mental and spiritual help. 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 determined that the applicant was properly and equitably discharged. d. 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. e. 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 Adjustment Disorder and asserted depression did not excuse or mitigate the offenses of marijuana use, disobedience, contempt, disrespect, slapping a Soldier, provoking words and gestures, FTRs, aggravated assault and unlawful entry. 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, 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 AR20210002488 1