1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, suffering from undiagnosed PTSD during service resulting from applicant’s deployment. The applicant states suffering from PTSD affected applicant’s judgment, and mitigated applicant’s conduct leading to discharge. The applicant states currently residing in a VA-sponsored homeless shelter, and believes an upgrade in characterization would help in the applicant finding a permanent home. b. Board Type and Decision: In a records review conducted on 21 July 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 July 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 July 2009 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 3 December 2007, the applicant assaulted PFC D. M. K.; between 3 January 2009 and 2 February 2009, the applicant had sexual intercourse with J. D., a person not the applicant’s spouse; on 11 March 2009 the applicant violated a no-contact order; on 9 June 2009 applicant disobeyed a lawful order from First Sergeant J. E. M. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 July 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 July 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 December 2006 / 6 years b. Age at Enlistment / Education / GT Score: 22 / some college / 117 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W10, Health Care Specialist / 4 years, 1 month, 8 days d. Prior Service / Characterizations: RA, 23 June 2005 – 9 December 2006 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (25 July 2006 – 25 October 2007) f. Awards and Decorations: ARCOM-2, AAM-3, MUC, AGCM, NDSM, GWOTSM, ICM- CS, OSR-2, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 3 December 2007, for assaulting PFC D. M. K. on or about 1 October to 2 October 2007, by grabbing the wrist forcefully, in violation of 128, UCMJ. The punishment consisted of a reduction to E-3 (suspended) and 14 days of extra duty. FG Article 15, dated 22 June 2009, for disobeying a lawful order from First Sergeant J. E. M., a noncommissioned officer, on 9 June 2009, in violation of Article 91, UCMJ. The punishment consisted of a reduction to E-1, forfeiture of $699 pay per month for two months (suspended), and 30 days of extra duty and restriction. Developmental Counseling Forms, for various acts of misconduct. Report of Mental Status Evaluation (MSE), dated 18 December 2008, reflects the applicant screened negative for both PTSD and TBI, the applicant was mentally responsible for behavior, could distinguish right from wrong, possessed sufficient mental capacity to understand and participate in any administrative or judicial proceedings, and exhibited no evidence of a psychiatric, mental, or emotional condition. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 4 February 2009, reflects insomnia and anger management related issues. Logistics Health Incorporated (LHI) document provided by the applicant, dated 5 February 2018, reflects the following diagnoses: PTSD; Cannabis use disorder, moderate. Symptoms of diagnoses include depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, suicidal ideation, and impaired impulse control. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Department of Veterans Affairs claim documents; Obituary; News release from the United States Department of Defense; Fresh Start VA Medical Center letter; US Senate Privacy Act release form; LHI documents; and VA Rating decision document. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable 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 waivable. 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 being diagnosed with PTSD post-service as a result of applicant’s deployment in Iraq, which affected the applicant’s judgment while in the military and mitigated conduct leading to the discharge. The applicant provided medical documents indicating a diagnosis of PTSD. The Army Military Human Resource Record (AMHRR) shows the applicant underwent a MSE on 18 December 2008, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any behavioral health diagnosis. The MSE was considered by the separation authority. The applicant contends good service, including a combat tour. 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. 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: combat related PTSD, Adjustment Disorder, Bipolar Disorder and Anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and is diagnosed and service connected by the VA with combat-related PTSD. Service connection establishes that PTSD existed during military service. There is no evidence that applicant's post-service diagnoses of Bipolar Disorder and Anxiety existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder and is diagnosed and service connected by the VA with combat-related PTSD. However, there is no natural sequela between PTSD or Adjustment Disorder and any of the misconduct of assault, sexual intercourse with a person not the applicant’s spouse, violation of a no-contact order, and disobeyed a lawful order from First Sergeant, that led to applicant’s separation. There is also no evidence in the medical record that any of applicant’s combat related PTSD, Adjustment Disorder, Bipolar Disorder and Anxiety contributed to applicant’s misconduct of assault, sexual intercourse with a person not the applicant’s spouse, violation of a no-contact order, and disobeyed a lawful order from First Sergeant. (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 combat related PTSD, Adjustment Disorder, Bipolar Disorder and Anxiety outweighed the basis for applicant’s separation – assault, sexual intercourse with a person not the applicant’s spouse, violation of a no-contact order, and disobeyed a lawful order from First Sergeant. b. Response to Contention(s): (1) The applicant contends being diagnosed with PTSD post-service as a result of the applicant’s deployment in Iraq, which affected the applicant’s judgment while in the military and mitigated conduct leading to the discharge. The Board considered this contention and determined the applicant has been diagnosed with combat-related PTSD, however the applicant’s misconduct of assault, sexual intercourse with a person not the applicant’s spouse, violation of a no-contact order, and disobeyed a lawful order from First Sergeant is not excused or mitigated by the applicant’s PTSD diagnosis. (2) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but 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 on the Army, and was prejudicial to good order and discipline. By committing assault, having sexual intercourse with a person not the applicant’s spouse, violating a no- contact order, and disobeying a lawful order from First Sergeant, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends current homelessness and the need for help. The Board considered this contention, however this contention alone did not outweigh the applicant’s discharge due to the severity of the applicant’s misconduct. The Board voted and determined the discharge is proper and equitable. c. 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. 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 combat related PTSD, Adjustment Disorder, Bipolar Disorder and Anxiety did not excuse or mitigate the offenses of committing assault, having sexual intercourse with a person not the applicant’s spouse, violating a no-contact order, and disobeying a lawful order from First Sergeant.The Board also considered the totality of the applicant’s record, including the applicant’s behavioral health conditions and the applicant’s good service, including a combat a combat tour and determined that a discharge upgrade was not warranted. 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. (1) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (2) 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 AR20210002746 1