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 applicant was held past ETS date for court- martial purposes. Upon the court-martial, the judge did not sentence the applicant to be discharged from the Army. After punitive action, the applicant was administratively discharged beyond the ETS from the unit with proper HQDA approval. Per legal counsel, the applicant should have not been administratively separated because no extension to administratively separate the applicant after the original ETS was obtained from HQDA as required by AR 635- 200, paragraph 1-26. b. Board Type and Decision: In a records review conducted on 30 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 / General (Under Honorable Conditions) b. Date of Discharge: 17 August 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 2 August 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 February 2013 / 4 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support System Specialist / 4 years, 4 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Informal Physical Evaluation Board (PEB) Proceedings, dated 18 May 2016, reflects the applicant was physically unfit and recommended a rating of 30 percent and the Soldier’s disposition be placed on TDRL and with a reexamination during November 2017. The applicant’s Enlisted Record Brief (ERB), dated 18 August 2017, reflects the applicant was flagged for Adverse Action (AA), effective 4 January 2017. The Assignment Eligibility Availability reflects the applicant was temporarily ineligible for reassignments due to medical, convalescence, student and/or trainees (except IET), enrollment in the Army Substance Abuse Program (ASAP) inpatient re-habilitation, or local bar to reenlistment. ASCO reflects, L1, under arrest, confinement of pending military or criminal court action. Memorandum Administrative Termination of Physical Evaluation Board Findings, dated 31 August 2017, reflects The Physical Disability Agency has administratively terminated the Integrated Disability Evaluation case for the applicant. Soldier was discharged IAW AR 635-200, Paragraph 14-12c, Abuse of Illegal Drugs. General Court-Martial Order Number 9, dated 7 September 2017, reflects the applicant was found guilty of violating Article 128, UCMJ, for unlawfully striking PFC I. R. C. on the face with the hand. The sentence was adjudged on 5 July 2017. The punishment consisted of: reduction to the grade of E-1, to forfeit of $700 pay per month for one month, and to be confined for 45 days. DD Form 214, dated 17 August 2017, block 18, reflects extension of service was at the request and for the convenience of the government. i. Lost Time / Mode of Return: 37 days (CMA, 5 July 2017 – 11 August 2017) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: PEB Proceedings, dated 18 May 2016, reflect the applicant was fit for the following mental health conditions: Adjustment Disorder with mixed anxiety and depressed mood, insomnia disorder, with non-sleep disorder mental comorbidity. 5. APPLICANT-PROVIDED EVIDENCE: Online application; Memorandum provided by Defense Counsel; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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) Paragraph 1-23a(1) states that a Soldier may be retained after ETS if charges were preferred. (2) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (3) 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. (4) 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. (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 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’s Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant’s AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). 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 general (under 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 being held past the ETS date for court-martial purposes. Upon the court-martial, the judge did not sentence the applicant to be discharged from the Army. After punitive action, the applicant was administratively discharged beyond the ETS from the unit with proper HQDA approval. Per legal counsel, the applicant should have not been administratively separated because no extension to administratively separate the applicant after the original ETS was obtained from HQDA as required by AR 635-200, paragraph 1-26. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. AR 635- 200, paragraph 1-22, stipulates a Soldier may be retained after his/her term of service has expired when an investigation of his/her conduct has been started with a view to trial by court- martial. Charges have been preferred. A Soldier who is awaiting trial or result of trial by court- martial when he/she would otherwise be eligible for discharge or release from AD will not be discharged or released until final disposition of the court-martial charges. General Court-Martial Order Number 9 dated 7 September 2017 reflects the applicant was found guilty of violating Article 128, the sentence did not consist of a discharge. The AMHRR is void of the case separation file pertaining to the separation pertaining to the separation under provisions of chapter 14-12c. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Adjustment Disorder with mixed anxiety and depressed mood, insomnia disorder, with non-sleep disorder mental comorbidity. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of and is service-connected for Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that assault, the accepted basis for separation, is not a progression or sequela of Adjustment Disorder. An Adjustment Disorder is a low level, temporary difficulty adjusting or coping with psychosocial stressors that do not impair cognitive abilities; the diagnosis would not impact ability to know right from wrong and understand the consequences. Additionally, the Adjustment Disorder was related to the applicant’s reaction to disciplinary and legal issues. Lastly, the applicant had a medical evaluation for behavioral health conditions as part of the MEB process which determined any behavioral health conditions were fitting. (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 the available evidence did not support a conclusion that the applicant’s Adjustment Disorder with mixed anxiety and depressed mood, insomnia disorder, with non-sleep disorder mental comorbidity outweighed the accepted basis for applicant’s separation – assault. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention non-persuasive during its deliberations. In the absence of the separation packet, the Board’s accepted basis for the Serious Offense narrative reason was assault. The applicant did not provide evidence which may indicate an impropriety or inequity for the Board’s consideration, and there is no evidence of the command acting in an arbitrary or capricious manner. (2) The applicant contends being held past ETS date for court-martial purposes; and per legal counsel, the applicant should have not been administratively separated because no extension to administratively separate the applicant after the original ETS was obtained from HQDA as required by AR 635-200, paragraph 1-26. This contention specifically was overruled by the convening counsel during the discharge process and still stands. The Board considered the totality of the applicant’s service record, the ETS extension after charges were preferred, and found the applicant requested, and received, the GD characterization in plea deal. ARBA confirms the discharge was proper and equitable. d. 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. 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 did not excuse or mitigate the offenses of assault, which is the accepted basis for separation. 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 AR20210002556 1