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, the applicant believes being unfairly discharged from the military. The applicant understands saying profanity in the presences of an officer is unprofessional but does not believe it is grounds to place the applicant in jail and discharge the applicant with under other than honorable conditions. The applicant accepts full responsibility for the actions and greatly regrets the response to the situation. The applicant went many years without any problems in the military and had always been an outstanding Soldier. Since being a civilian, the applicant has tried to better oneself and the applicant's situation. The applicant receives medical pay from the VA because they have found the applicant has an injury. The applicant has found a top psychologist which successfully treats PTSD. The applicant has become a proud spouse and parent and wants nothing but the best for the family and the future which is the applicant's main motivator to taking action to receive a discharge upgrade. b. Board Type and Decision: In a records review conducted on 6 September 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and prior period of Honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. 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: 26 May 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 March 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant missed movement of Alpha Company, 1st Battalion, 15th Infantry Regiment, 3rd Brigade Combat Team, on or about 4 January 2010; and, the applicant disrespected the superior Commissioned Officer CPT T. L. G., on two occasions on or about 4 January 2010. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 8 April 2010 (5) Administrative Separation Board: On 8 April 2010, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 18 May 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 June 2008 / 4 years b. Age at Enlistment / Education / GT Score: 21 / High School Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / None (The DD Form 214 indicates "None" however the ERB reflects a PMOS of "11B10, Infantryman") / 4 years, 2 months, 4 days d. Prior Service / Characterizations: RA, 15 February 2006 - 1 June 2008 / HD e. Overseas Service / Combat Service: SWA/ Iraq (1 August 2006 - 1 November 2007) f. Awards and Decorations: ARCOM, AAM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Pretrial Agreement (Offer to Plead Guilty), dated 8 April 2010, reflects the applicant plead guilty to all charges in a pending summary court- martial. The applicant agreed to accept an under other than honorable conditions discharge in the action initiated to separate the applicant pursuant to AR 635-200, chapter 14, paragraph 12 and to waive the right to demand a separation board. Report of Result of Trial, dated 19 April 2010, reflects the applicant was found guilty of: Charge I: violation of the UCMJ, Article 87, through design missed movement of Alpha Company, 1st Battalion, 15th Infantry Regiment, on or about 4 January 2010. Charge II: violation of the UCMJ, Article 89. Specification 1: behave with disrespect toward CPT T. L. G., the superior commissioned officer by saying "This is fucking bullshit," "I am trying to tell you I am fucking hurting, and you are going to send me to training anyway," "I am fucking tired of this bullshit," or words to that effect on or about 4 January 2010. Specification 2: behaving with disrespect toward CPT T. L. G., the superior commissioned officer by saying to SPC D. A. L. "Fuck this, where the fuck is she?" "I do not give a fuck, I want to talk to her" or words to that effect. The sentence consisted of reduction to E-1, 30 days of confinement, and forfeiture of $964 pay for one month. Numerous Event Oriented Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 37 days (CMA, 19 April 2010 - 26 March 2010) / Released from Confinement. j. Diagnosed PTSD / TBI / Behavioral Health: Heath Record, dated 15 February 2010, reflects the applicant was diagnosed with: Axis I: R/o PTSD; R/o Bipolar II Disorder; R/p MDD, Recurrent, Moderate Axis III: R/o TBI for 4 episodes of LOC x 10 sec to 2 minutes. Axis IV: legal and Occupational distress r/t UCMJ charges of missing movement and disrespect, and pending Chapter 14 separation next month. Good remote social support in girlfriend. The applicant provided a copy of Child & Family Wellness Institute Psychological Evaluation, dated 15 February 2016, which reflects the applicant was diagnosed with: Posttraumatic Stress Disorder; Avoidant Personality; Rule out Traumatic Brain Injury. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored letter; DD Form 3349; DD Form 689; Child & Family Wellness Institute Psychological Evaluation; Consent for Release of Personal Records Form. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has become a proud spouse and father and wants nothing but the best for the family and future. 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. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends using profanity in the presences of an officer is unprofessional but does not believe it is grounds to place the applicant in jail and discharge the applicant with under other than honorable conditions discharge. The Army Military Human Resource Record (AMHRR) indicates the applicant committed several discrediting offenses. Army Regulation 635- 200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends suffering from PTSD. The applicant provided a copy of Child & Family Wellness Institute Psychological Evaluation, dated 15 February 2016, reflects the applicant was diagnosed with: Posttraumatic Stress Disorder; Avoidant Personality; Rule out Traumatic Brain Injury. The AMHRR does not contain a mental status evaluation. The applicant contends receiving money from VA for injuries. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The applicant has become a proud spouse and parent and wants nothing but the best for the family and future. 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/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: due to service-connected disability of 50% for PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found PTSD was present during his time in service (per JLV). (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that, based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, PTSD. As there is an association between PTSD and avoidant behavior, there is a nexus between applicant's diagnosis of PTSD and his absences/neglectful performance from required duty functions following his deployment to Iraq. Also, as there is an association between PTSD and use of alcohol to self-medicate symptoms, there is a nexus between his PTSD and the pattern of substance abusing behavior applicant acknowledged. Finally, as there is an association between PTSD and resistant, hostile attitudes toward authority figures, there is a nexus between his PTSD symptoms and the disrespectful, menacing behavior and negative attitude he demonstrated. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (2) The applicant contends using profanity in the presences of an officer is unprofessional but does not believe it is grounds to place the applicant in jail and discharge the applicant with under other than honorable conditions discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD fully outweighing the applicant's basis for separation. (3) The applicant contends suffering from PTSD. The Board determined this contention was valid after review of the applicant's DOD and VA health records. It revealed the applicant was diagnosed in service with PTSD. (4) The applicant contends receiving money from VA for injuries. 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 voted to grant relief in the form of an upgrade to the characterization. d. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and prior period of Honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had a BH condition which mitigated the applicant's misconduct of absences/neglectful performance, use of alcohol to self-medicate, pattern of substance abuse, disrespect and resistant, hostile attitudes toward authority. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210002563 1