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 was for a pattern of misconduct, however there was only one Article 15. The applicant paid and suffered the consequence of the Article 15 and then was discharged with a general (under honorable conditions). The discharge is holding the applicant back from providing a better life for the family. b. Board Type and Decision: In a records review conducted on 20 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 / AR 635-200, Chapter 14- 12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 31 March 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 February 2003 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to obey orders, lost government property, failed to pay debts, failed to maintain room to the proper standards, committed conspiracy for aggravated assault, breach of peace, unlawfully entered private property, failed to maintain equipment, and failed to be at appointed place of duty on several occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 February 2003 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 March 2003 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 November 2001 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 62E10 Heavy Construction Equipment Operator / 3 years, 8 months, 14 days / Block 12a on the applicant’s DD Form 214 appears to be incorrect and should reflect 8 November 2001; Block 12c, should reflect 1 year, 4 months, 23 days; and, Block 12d, should reflect 2 years, 4 months and 8 days. d. Prior Service / Characterizations: ARNG, 30 June 1999 – 20 June 2000 / NA IADT, 21 June 2000 – 2 November 2000 / UNC ARNG, 3 November 2000 – 21 October 2001 / HD (Break in Service) e. Overseas Service / Combat Service: Alaska / None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 28 May 2002, for on or about 12 January 2002, conspire with 18 other persons to commit offenses under Uniform Code of Military Justice to wit: aggravated assault, housebreaking and breach of peace, and to affect the object of the conspiracy. Also, the applicant and 18 persons did go to the home of D. C., armed with entrenching tools, brass knuckles, a metal table leg, a nail hammer, sticks, a stun gun, and a 9 mm handgun. On or about 12 January 2002; the applicant, caused a breach of peace by wrongfully going to Lakeview Trailer Park with 18 other persons armed with entrenching tools, brass knuckles, a metal table leg, a nail hammer, sticks, a stun gun, and a 9 mm handgun to commit assault on D. C., and N. C. On or about 12 January 2002 unlawfully enter a dwelling the property of D. C., with intent to commit a criminal offense. The punishment consisted of extra duty and restriction for 30 days. Report of Mental Status Evaluation, dated 19 February 2003, 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. CG Article 15, dated 21 February 2003, for disobeying a lawful order on or about 13 January 2003. On or about 13 December 2002 violate a lawful company policy. The punishment consisted of a reduction to E-3; forfeiture of $365 (suspended); 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: Report of Medical Examination, dated 10 February 2003, the examining medical physician noted in the comments section: Symptoms consistent with depression and possible bipolar disorder. 5. APPLICANT-PROVIDED EVIDENCE: Online application. 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. 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-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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the discharge was for a pattern of misconduct, however there was only one Article 15. The Army Military Resource Record (AMHRR) reflects two Article 15s and numerous counseling statements for misconduct. The applicant’s Army Military Human Resource Record (AMHRR) includes a Report of Medical Examination, dated 10 February 2003, wherein the examining medical physician noted in the comments section: Symptoms consistent with depression and possible bipolar disorder. The applicant’s AMHRR includes a Report of Mental Status Evaluation, dated 19 February 2003, 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 MSE was considered by the separation authority. The applicant contends suffering the consequences of the Article 15 and then was discharged with a general (under honorable conditions). The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the discharge is holding the applicant back from providing a better life for the family. 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? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found insufficient evidence to support a finding that the applicant had any mitigating BH diagnoses. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge, as with applicant’s suspected Bipolar condition and depressive symptoms, there were no available substantiating diagnoses. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends discharge was for a pattern of misconduct, however there was only one Article 15. The Board considered this contention non-persuasive during its deliberations, as official records contradict the contention, noting two Article 15s and numerous counseling statements for misconduct. Finally, the offenses listed in the basis for separation are numerous, detailed, and some violent in nature: applicant failed to obey orders, lost government property, failed to pay debts, failed to maintain room to the proper standards, committed conspiracy for aggravated assault, breach of peace, unlawfully entered private property, failed to maintain equipment, and failed to be at appointed place of duty on several occasions. (2) The applicant’s Army Military Human Resource Record (AMHRR) includes a Report of Medical Examination, dated 10 February 2003, wherein the examining medical physician noted in the comments section: Symptoms consistent with depression and possible bipolar disorder. 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. In this case, the Board considered this contention as well as the Report of Mental Status Evaluation which reflects the applicant was cleared for any administrative actions deemed appropriate by the command, and that the applicant could understand the difference between right and wrong and could participate in the proceedings. In addition, symptoms are not a diagnosis. The Board then determined that there were no mitigating factors that outweighed the severity and violent nature of the applicant’s offenses to warrant an upgrade. (3) The applicant contends suffering the consequences of the Article 15 and then was discharged with a general (under honorable conditions). The Board considered this contention and determined that a General Discharge with a Misconduct narrative reason is proper and equitable due to the serious nature of the offenses for which the applicant was discharged. (4) The applicant contends the discharge is holding the applicant back from providing a better life for the family. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. The applicant’s misconduct – failure to obey orders, losing government property, failure to pay debts, failure to maintain room to the proper standards, committing conspiracy for aggravated assault, breaching of peace, unlawfully entering private property, failure to maintain equipment, and failure to be at appointed place of duty on several occasions – brought discredit on the Army, and was prejudicial to good order and discipline. By committing these offenses, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. 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 d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because there were no mitigating factors for the Board to consider which might mitigate, excuse, or outweigh the applicant’s misconduct: failure to obey orders, losing government property, failure to pay debts, failure to maintain room to the proper standards, committing conspiracy for aggravated assault, breaching of peace, unlawfully entering private property, failure to maintain equipment, and failure to be at appointed place of duty on several occasions. 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 AR20210002536 1