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, being informed by the VA this period is dishonorable and cannot receive full benefits for the period 1 May 2004 to 13 May 2005. The applicant served honorably in Iraq and received three medals. The applicant did not have any misconduct or negative reports. The state of Connecticut gave the applicant the Connecticut Veterans Wartime Service Medal. The conviction happened at Fort Irwin and not Schofield Barracks. The applicant requests the time in Iraq be considered as honorable to allow the applicant full benefits and the help the applicant needs for this time. The applicant served proudly in Operation Iraq Freedom in 2004 and is disabled and has been homeless seven times because help was not available, or the applicant could not afford rent. b. Board Type and Decision: In a records review conducted on 16 August 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 2 September 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The Commander’s Report, dated 7 May 2008, reflects on 21 June 2007, the applicant was convicted of willful cruelty to a child with possible injury or death in San Bernardino Superior Court, a civilian court, pursuant to the plea of nolo contendere. This offense, if tried at General Court Martial, would carry the possibility of a punitive discharge. (3) Recommended Characterization: NIF / The intermediate commander’s recommended Under Other Than Honorable Conditions. (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 1 July 2008, the applicant’s conditional waiver was denied. (6) Separation Decision Date / Characterization: 7 August 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 June 2003 / 6 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 81 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 8 years, 1 month, 2 days / Block 12a appears to be incorrect should read 1 May 2001 according to DD Form 215, dated 8 July 2009. d. Prior Service / Characterizations: ARNG, 31 July 2000 – 23 August 2000 / NA IADT, 24 August 2000 – 26 January 2001 / UNC ARNG, 27 January 2001 – 30 April 2001 / HD RA, 1 May 2001 – 3 June 2003 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (1 March 2004 – 31 March 2005) f. Awards and Decorations: ARCOM, ACGM-2, NDSM, GWOTSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 267-0041, dated 19 August 2008, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 2 September 2008 from the Regular Army. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; two DD Forms 215; DD Form 293; DA Form 638; ARCOM Certificate; VA Form 21-0781; VA Form 21-4138, two letters of support; Memorandum for Record campaign medal; Memorandum for Record period of service; Permanent Orders C041-14; Memorandum for Record perstempo days; Certificate of Recognition; Memorandum for Record: Authority to wear; Connecticut Veterans Wartime Service Medal Certificate; VA letter; Certificate of Appreciation; Orders C194-79; PTSD and Compassion letter. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (7) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resource Record (AMHRR) is void of the complete 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). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, SEC II, by reason of Misconduct (Civil Conviction), with a characterization of service of under other than honorable conditions. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant’s discharge, the applicant had been confined by civilian authorities. The amount of time the applicant was confined is unavailable for review. The applicant was convicted on 21 June 2007. The applicant contends the conviction happen at Fort Irwin CA. and not Schofield Barracks Hawaii. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being unable to receive full benefits for the period 1 May 2004 to 13 May 2005. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends current homelessness and the need for help. Eligibility for housing support program benefits for Veterans does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct in the Army and how well the applicant preforms under stressful situations while under direct fire from the enemy. 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: AHLTA contains an in-service BH diagnosis of ADHD. It contains an additional BH condition of Parent-Child Problem. JLV has additional post-service BH diagnoses of other Psychotic Disorder, Major Depressive Disorder, Alcohol Dependence, PTSD, and Anxiety Disorder. The applicant is 60% service connected. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found AHLTA contains an in-service BH diagnosis of ADHD. It contains an additional BH condition of Parent-Child Problem. JLV has additional post-service BH diagnoses of other Psychotic Disorder, Major Depressive Disorder, Alcohol Dependence, PTSD, and Anxiety Disorder. The applicant is 60% service connected. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that after reviewing the available information there is an in-service diagnosis of PTSD. However, the applicant’s misconduct/civil conviction is not mitigated. Willful cruelty to a child with possible injury or death/civil conviction is not part of the sequela of symptoms associated with PTSD. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant’s diagnoses of ADHD, other Psychotic Disorder, Major Depressive Disorder, Alcohol Dependence, PTSD, and Anxiety Disorder outweighed the potential basis for applicant’s separation of willful cruelty to a child with possible injury or death/civil conviction. b. Response to Contention(s): (1) The applicant contends being unable to receive full benefits for the period 1 May 2004 to 13 May 2005. The Board considered this contention and determined the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board decided that the assertion alone did not outweigh the basis of separation due to the severity of the offenses and found no evidence of the Command acting arbitrarily or capriciously. In this case, the Board determined the discharge was proper and equitable. (2) The applicant contends current homelessness and the need for help. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, no law or regulation provides an unfavorable discharge that must be upgraded based solely on the passage of time, good conduct in civilian life after leaving the service or homelessness. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments and situations help demonstrate whether previous in-service misconduct was an aberration and not indicative of the member’s overall character. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. (3) The applicant contends good service, including a combat tour. The Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit to the Army and was prejudicial to good order and discipline. By committing willful cruelty to a child with possible injury or death/civil conviction, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board.The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s BH diagnoses of ADHD, other Psychotic Disorder, Major Depressive Disorder, Alcohol Dependence, PTSD, and Anxiety Disorder did not excuse or mitigate the offenses of willful cruelty to a child with possible injury or death/civil conviction. 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, 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 AR20210002591 1