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, returning from a year tour of combat duty in Afghanistan, during which time, the applicant displayed significant psychological adjustment difficulties after returning home. The applicant was exposed to repeated and ongoing traumatic events which are documented by Dr. N. L. located in Syracuse, New York. b. Board Type and Decision: In a records review conducted on 8 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 19 January 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 December 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 6 August 2011, the applicant was arrested for burglary, unlawful imprisonment, and criminal obstruction of breathing, all criminal incidents which happened off post. On or about 31 July 2011, the applicant was arrested for criminal possession of a weapon and evading arrest, incidents which happened off post. On 15 July and 18 July 2011, the applicant failed to go at the time prescribed to the appointed place of duty. On or about 17 July 2011, the applicant failed to complete a required Blue 17 Report for injury that required hospital treatment. On or about 25 April 2011, the applicant failed to go at the time prescribed to the appointed place of duty. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 7 December 2011 (5) Administrative Separation Board: On 7 December 2011, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 22 December 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 February 2009 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 11 months, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (2 April 2010 – 2 April 2011) f. Awards and Decorations: ACM-CS, ARCOM, NDSM, GWOTSM, ASR, OSR, CIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15, dated 2 June 2011, for failing to go at the time prescribed to the appointed place of duty on or about 25 April 2011. The punishment consisted of five days extra duty and, an oral reprimand. Military Police Report, dated 12 July 2011, reflects the applicant was cited for unsafe backing; unlicensed operation; and traffic accident (without injuries). Military Police Report, dated 31 July 2011, reflects the applicant was apprehended for criminal possession of a weapon 2nd degree (Civil) (off post); criminal possession of a weapon 3rd degree (Civil) (off post); and resisting arrest (Civil) (off post). Watertown Police Department Arrest Report, dated 6 August 2011, reflects the applicant was arrested for unlawful imprisonment in the first degree; and burglary 3 class D felony. CG Article 15, dated 4 October 2011, for failing to obey a lawful order on or about 6 August 2011; and, failing to go at the time prescribed to the appointed place of duty on or about 15 July 2011. The punishment consisted of a reduction to E-3; forfeiture of $429 pay; and extra duty and restriction for 14 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Forensic Psychological Evaluation, dated 14 September 2011, which reflects the applicant was diagnosed with combat related PTSD. Report of Medical History, dated 23 September 2011, the examining medical physician noted in the comments section: nervous trouble/panic – anxious, nervous around crowds not on any medications has pending BH appointment. Report of Mental Status Evaluation, dated 28 September 2011, 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: Adjustment Disorder. The applicant provided a copy of VA Rating Decision Letter, dated 1 May 2018, which reflects the applicant was granted health care benefits under Chapter 17, Title 38 U.S.C. and 38 CFR 3.360(a) for any disability determined to be service-connected for active service from 12 February 2009 to 19 January 2012. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Veterans Treatment Court Contract; Forensic Psychological Evaluation; VA Rating 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) 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 14-12b, 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. 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 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 contends suffering from significant psychological adjustment difficulties after returning home from a deployment in Afghanistan. Report of Medical History dated 23 September 2011, the examining medical physician noted in the comments section: nervous trouble/panic – anxious, nervous around crowds not on any medications has pending BH appointment. The applicant’s Army Military Human Resource Record (AMHRR) contains documentation which supports a diagnosis of adjustment disorder. The record shows the applicant underwent a mental status evaluation (MSE) on 28 September 2011, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The applicant was diagnosed with: Adjustment Disorder. The MSE was considered by the separation authority. The applicant provided a copy of Forensic Psychological Evaluation, dated 14 September 2011, which reflects the applicant was diagnosed with combat related PTSD. The applicant provided a copy of VA Rating Decision Letter, dated 1 May 2018, which reflects the applicant was granted health care benefits under Chapter 17, Title 38 U.S.C. and 38 CFR 3.360(a) for any disability determined to be service-connected for active service from 12 February 2009 to 19 January 2012. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: PTSD, Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s Adjustment Disorder and PTSD existed 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 given the nexus between PTSD and avoidance, there was likely some association between the applicant’s PTSD and the FTRs. Applicant’s remaining misconduct is not mitigated since the applicant’s BH conditions do not interfere with the 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 concurred with the opinion of the Board’s Medical Advisor, a voting member, that although the applicant’s PTSD mitigates the applicant’s FTRs, the available evidence did not support a conclusion that the applicant’s PTSD outweighed the remaining basis for the applicant’s separation – burglary, unlawful imprisonment, assault, possession of a weapon, and evading arrest. b. Response to Contention(s): The applicant contends suffering from significant psychological adjustment difficulties after returning home from a deployment in Afghanistan. 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’s Adjustment Disorder bears no connection to the any of the applicant’s misconduct, and that the applicant’s PTSD mitigates the applicant’s FTRs, but does not outweigh the remaining basis of the applicant’s separation. 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, although the applicant’s PTSD mitigates the applicant’s FTRs, the Board determined the applicant’s PTSD did not excuse or mitigate the remaining offenses of burglary, unlawful imprisonment, assault, possession of a weapon, and evading 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 AR20210002493 1