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, suffering from PTSD and at the time a level of hopelessness which the applicant once had suicidal ideology. The applicant is a person of integrity, as an NCO, the applicant had an obligation to speak the truth always. The applicant notified the chain of command at Fort Drum, of an off-base legal matter inside of another state involving a DWAI which was ongoing. The applicant was also coping with the loss of a friend which the applicant recently buried. The applicant agreed to be transparent with the command team until learning the intent from them was to betray the applicant’s trust and confidence bestowed in them to paint the applicant out to be reckless in nature. They did not realize, nor care to ask or obtain any further information from the applicant. When the applicant refused to speak about the grounds of the legal matters of the case, they conducted a CID investigation which came back differently from the verdict of the courtroom final decision/outcome. Inside the applicant’s record, it was stated the applicant had a BAC of .187 when the verdict inside of an official courtroom was 0.00 BAC level. As far as due process is concerned, the applicant believes the Army stripped the applicant from rights as an American and made judgement before anything was proven. The applicant experienced a break-up of a relationship which resulted in another court matter on grounds of aggravated harassment. The applicant was accused of saying something which was not proven in court. The unit immediately made a judgement upon the applicant and annotated inside of a NCOER the applicant violated SHARP policies. The applicant was not convicted of these charges but according to the military, was once again guilty before proven innocent. The applicant attended mental health, where the counselor immediately sought a medical discharge, however, once the command team was informed, they annotated in the record the applicant was not deserving of “any VA assistance or benefits.” They believed the applicant was faking a medical condition from 2011. The applicant lost confidence in the unit’s ability to support and sought outpatient treatment and was hospitalized. The applicant attended ASAP and ultimately was on the edge of suicide. The applicant will never understand how a civilian court room had more understanding of medical conditions in both of the court cases than the Army. The applicant states, there are improper annotations on the DD Form 214, wherein the MOS reflects 11C, when the actual MOS was 11B, Infantryman. This error reflects the intent the command team’s focus was more on punitive actions, than on the obvious errors which would follow the applicant for the rest of life. The applicant believes the discharge characterization was in fact inadequate and improper in nature. The applicant expected much more from leadership, but instead was shown what really mattered to them, which was speedy judgement and punitive actions, as reflected in the NCOER and DD Form 214. Rather than support a Soldier who needed help, the command team broke the applicant. 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 12 November 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 September 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 21 July 2015, the applicant violated a lawful order issued by 1LT A. M. T.; On or about 11 July 2015, the applicant wrongfully communicated a threat to A. R. W. a threat, to wit: “I’m going to come in through your window and fuck you in your ass and your pussy whether you like it or not;” On 18 March 2015, the applicant drove under the influence of alcohol with a blood alcohol content of 0.182 percent; and Additionally, during the current term of enlistment, the applicant had engaged in the following misconduct: on 27 May 2015, the applicant failed to report to the appointed place of duty, to wit: 0700 Accountability Formation at Headquarters and Headquarters Troop, 1st Squadron, 89th Cavalry Regiment. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 September 2015 (5) Administrative Separation Board: On 15 September 2015, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 20 October 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2013 / 6 years b. Age at Enlistment / Education / GT Score: 27 / High School Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11C30, Indirect Fire Infantryman / 11 years, 5 months, 19 days d. Prior Service / Characterizations: RA, 24 May 2004 – 16 January 2007 / HD RA, 17 January 2007 – 23 January 2013 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (9 July 2009 – 15 July 2010; 28 April 2011 – 3 September 2011); Kuwait (11 October 2013 – 23 June 2014) f. Awards and Decorations: ACM-3CS, ARCOM-3, AAM-3, USN/USMC PUC, AGCM-3, NDSM, GWOTSM, GWOTEM, KDSM, NCOPDR-2, ASR, OSR-2, NATOMDL, CIB g. Performance Ratings: 20 September 2012 – 19 September 2013 / Fully Capable 20 September 2013 – 19 September 2014 / Fully Capable 20 September 2014 – 15 January 2015 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report, undated, reflects the applicant was charged with Careless or Reckless Driving-Caused Bodily Injury; Driving Under the Influence – Alcohol; Driving Under the Influence – Blood Alcohol Content .08 or more; Failed to stop for Traffic Control Signal at Place Required; and Compulsory Insurance- Driver Operated an Uninsured Motor Vehicle. Investigation by Colorado Springs Police revealed on 18 March 2015 on 0200 hours, vehicle #1 a 2004 Audi, owned by the applicant, while traveling Westbound on Murray Avenue, failed to stop for a steady red light and entered into the intersection and struck vehicle #2 a 2000 Chrysler owned by S. which was traveling in a Northbound direction. A strong odor of an alcoholic beverage was detected emanating from the applicant’s breath. The applicant failed a SFST and was transported to Memorial Central Hospital for evaluation and treatment for possible head trauma. The applicant consented to a blood sample which resulted in a .182 percent BAC. Vehicle #1 sustained major damage to the passenger side rear half and bumper. Both vehicles were towed by an unknown service. Additionally, the applicant was cited for failure to maintain insurance on the vehicle. S. of vehicle #2 sustained minor injury to the head and was medically cleared. Adjudication of the offenses was not available at the time of this report. The applicant was read a Suspension/Revocation of On-Post Driving Privileges for Intoxicated Driving. Memorandum, Suspension/Revocation of On-Post Driving Privileges for Intoxicated Driving, dated 14 April 2015, reflects the applicant’s on-post privately owned vehicle driving privileges were suspended immediately pending the adjudication of the Impaired Driving charged placed against the applicant on 18 March 2015. Black & Graham letter, dated 29 June 2015, reflects the applicant entered into a plea agreement, where the applicant pled guilty to DWAI and all other charges were dismissed. State of New York Court document, dated 13 July 2015, reflects the applicant was charged with Aggravated Harassment-2nd. FG Article 15, dated 15 September 2015, for failing to obey a lawful order by wrongfully operating a privately owned vehicle on post while driving privileges were suspended on or about 21 July 2015. The punishment consisted of a reduction to E-5; and, extra duty and restriction for 45 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 Mental Status Evaluation, dated 3 August 2015, reflects the applicant the applicant could understand the difference between right and wrong. The applicant met medical retention determination point (MRDP) to be referred to Medical Evaluation Board. The applicant was diagnosed with Axis I: PTSD; Alcohol Abuse and Axis II: Antisocial Personality Disorder. The applicant could participate in the proceedings. It was noted: Soldier has had two prior ASAP enrollments for Alcohol Abuse. This Soldier was seen for a mental status evaluation in preparation for administrative separation proceedings in accordance with Chapter 14-12, AR 635-200. The Soldier denied suicidal and homicidal ideations, plans, and intent. Soldier meets criteria for Chronic PTSD. Soldier has a significant and well documented behavior health history which demonstrate symptoms of Chronic PTSD. Soldier has a significant and well documented behavioral health history which demonstrate the symptoms have consistently interfered with the applicant’s military performance and they will continue to do so despite further treatment. In accordance with AR 40-501, the applicant will be referred to a medical evaluation board to determine whether the applicant is unfit for duty. Soldier is not cleared by the provider to proceed with administrative separation and will be referred to the medical evaluation board IAW AR 40-501. Medical Evaluation Board Proceedings, dated 1 October 2015, reflect the following diagnosis: PTSD and Antisocial Personality Disorder. 5. APPLICANT-PROVIDED EVIDENCE: Online Application; self-authored statement; State of Colorado court documents. 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 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. (5) 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 contends good service, including three combat tours. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends the command believed the applicant was faking a medical condition and the applicant lost confidence in the command. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends suffering from PTSD. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD. The record shows the applicant underwent a mental status evaluation (MSE) on 3 August 2015, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The applicant was diagnosed with Axis I: PTSD; Alcohol Abuse and Axis II: Antisocial Personality Disorder. Medical Evaluation Board Proceedings, dated 1 October 2015, reflect the following diagnosis: PTSD and Antisocial Personality Disorder. The MSE was considered by the separation authority. The applicant contends the command cast judgement and assumed the applicant was guilty before being proven innocent. The AMHRR includes a letter from Black & Graham, dated 29 June 2015, reflecting the applicant entered into a plea agreement, where the applicant pled guilty to DWAI and all other charges were dismissed. The AMHRR also includes a FG Article 15, dated 15 September 2015, for failing to obey a lawful order by wrongfully operating a privately owned vehicle on post while driving privileges were suspended. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends rather than support a Soldier who needed help, the command team broke the applicant. 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. The applicant contends the DD Form 214 block 11 reflects MOS 11C, Indirect Fire Infantryman however should show MOS 11B, Infantryman. The applicant’s requested change to the DD Form 214 does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. 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 that the applicant has the following potentially mitigating diagnoses/experiences: PTSD and TBI related-symptoms. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s PTSD and TBI-related symptoms were present 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, based on the information in the applicant’s medical record, there are no mitigating Behavioral Health conditions. Threats to sexually assault the applicant’s estranged significant other in a degrading and traumatizing manner, as well as feigning suicidal symptoms to be hospitalized, is not part of the natural history or sequelae of PTSD, TBI-related symptoms or other behavioral health conditions, and, as such, is not mitigated under Liberal Consideration. . (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s PTSD and TBI related-symptoms outweighed the medically unmitigated misconduct of wrongfully communicating a threat, due to the serious nature of the harassment. b. Response to Contention(s): (1) The applicant contends suffering from PTSD. The Board liberally considered this contention and determined that the available evidence did not support a conclusion that the neither the applicant’s PTSD nor TBI related-symptoms outweighed the unmitigated misconduct of wrongfully communicating a threat, due to the serious nature of the harassment. Therefore, a discharge upgrade is not warranted. (2) The applicant contends good service, including three combat tours. The Board considered the totality of the applicant’s service record, including numerous awards, but determined that these factors did not outweigh applicant’s medically unmitigated misconduct of communicating a threat. Therefore, a discharge upgrade is not warranted. (3) The applicant contends the discharge should have been for medical reasons. The Board considered this contention but determined that this subject does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. (4) The applicant contends the command believed the applicant was faking a medical condition and the applicant lost confidence in the command. The Board considered this contention, however the Board determined that there is no evidence of the applicant’s chain of command acting in an arbitrary or capricious manner in official or medical records, and the applicant did not provide sufficient evidence 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. (5) The applicant contends the command cast judgement and assumed the applicant was guilty before being proven innocent. The Board considered this contention, but did not find evidence to contradict the court documents where applicant plead guilty to DWAI and evidence showing that on or about 11 July 2015, the applicant wrongfully communicated a threat to A. R. W. (6) The applicant contends rather than support a Soldier who needed help, the command team broke the applicant. The Board considered this contention and determined that 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 prior to initiating separation proceedings. (7) The applicant contends the DD Form 214 block 11 reflects MOS 11C, Indirect Fire Infantryman; however, should show MOS 11B, Infantryman. The applicant’s requested change to the DD Form 214 does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. 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 Post Traumatic Stress Disorder and Traumatic Brain Injury did not excuse or mitigate the offense of communicating a threat to sexually assault an estranged partner. The Board also considered the applicant's contentions regarding good service and the actions of the command and found that totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (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 AR20210002565 1