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 was wrongly charged. The applicant's spouse was the guilty party and the applicant was punished by being the spouse. The applicant was forced to go through a separation Board. The applicant went through the chain of command however, but was not successful and was discharged. The applicant was an E-6 promotable and on orders to Fort Knox. The applicant has four combat deployments to Iraq and Afghanistan. b. Board Type and Decision: In a records review conducted on 19 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 19 November 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 August 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 29 February 2016, the applicant violated a general regulation, AER 600-1, dated 20 May 2009, by possessing drug paraphernalia in a military installation; Between on or about 8 September 2015 and on or about 29 February 2016, the applicant wrongfully possessed marijuana; Between on or about 8 September 2015 and on or about 29 February 2016, the applicant wrongfully distributed marijuana; On divers occasions between on or about 29 February 2016 and on or about 5 May 2016, the applicant wrongfully intimidated and harassed SGT A. H. and Ms. D. W., witnesses who had identified the applicant's spouse as a marijuana dealer; and, On or about 19 November 2016, the applicant assaulted the spouse by pushing. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 10 August 2017 (5) Administrative Separation Board: On 19 September 2017, the applicant was notified to appear before an administrative separation board and advised of rights. On 2 October 2017, the administrative separation board convened and the applicant appeared with counsel. The Board determined two of the five reasons listed in the notification memorandum were not supported by a preponderance of the evidence. The Board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 31 October 2017, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 31 October 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 January 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-6 / 92F30, Petroleum Supply Specialist / 16 years, 3 months, 13 days d. Prior Service / Characterizations: RA, 7 August 2001 - 6 January 2003 / HD RA, 7 January 2003 - 28 September 2006 / HD RA, 29 September 2006 - 18 January 2011 / HD RA, 19 January 2011 - 14 January 2014 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (8 May 2012 - 24 February 2013); Iraq (23 February 2003 - 20 February 2004; 10 February 2005 - 16 February 2006; 12 September 2008 - 14 September 2009) f. Awards and Decorations: ACM-CS, ICM-4CS, ARCOM-6, AAM, MUC-5, AGCM-5, NDSM, GWOTEM, GWOTSM, NCOPDR-2, ASR, OSR-6, NATOMDL g. Performance Ratings: 1 May 2013 - 30 April 2014 / Among The Best 1 May 2014 - 30 April 2015 / Among The Best 1 May 2015 - 30 April 2016 / Highly Qualified 1 May 2016 - 31 May 2017 / Not Qualified h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report- Final, dated 13 September 2016, reflects the applicant was being investigated for wrongful possession of marijuana. Law Enforcement Report - 1st Status, dated 15 December 2016, reflects the applicant was being investigated for assault consummated by battery. General Officer Administrative Reprimand, dated 7 April 2017, reflects the applicant was reprimanded for becoming involved in the applicant's spouse's marijuana distribution operation, endangering the health and welfare of the applicant's children, harassing and intimidating members of the Ansbach military community, and physically assaulting the spouse. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 3 July 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with Adjustment Disorder with depressed and Anxious Mood. Report of Medical Examination, dated 6 November 2017, the examining medical physician noted in the comments section: Anxiety. Report of Mental Status Evaluation, dated 2 November 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with Adjustment Disorder, NOS. It was noted there was no evidence the Soldier has a psychological condition which does not meet the retention standards of AR 40-501 and AR 635-200. This Soldier does not qualify for a Medical Evaluation Board. There is no current evidence this Soldier has a substance abuse disorder or is in need of a substance abuse evaluation or treatment. Soldier is cleared from a Behavioral Health standpoint for any administrative proceedings the Command deems necessary. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Memorandum for Commander; 17 third- party letters. 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) 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 family issues affected behavior and ultimately caused the discharge. There is no evidence in the Army Military Human Resource Record (AMHRR) the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends being forced to go through a separation Board. The applicant went through the chain of command but was not successful. On 10 August 2017, the applicant affirmed in the Election of Rights the request to have the case considered by an administrative separation board. On 19 September 2017, the applicant was notified to appear before an administrative separation board and advised of rights. There is no evidence in the AMHRR the applicant elected The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including four combat tours. 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 during the time the applicant served in the Army. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Adjustment Disorder, Anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service BH diagnoses and conditions of Adjustment Disorder, Anxiety. (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 does not have any mitigating BH diagnoses. While the applicant has BH diagnoses of Adjustment Disorder and Anxiety, the misconduct to include possession and distribution of marijuana, assaulting the spouse, and wrongfully intimidating and harassing witnesses are not part of the sequela of symptoms associated with these BH disorders and are therefore not mitigating. . (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 any of the applicant's medical conditions of Adjustment Disorder or Anxiety completely outweighed the basis for applicant's separation - possession and distribution of marijuana, assaulting the spouse, and wrongfully intimidating and harassing witnesses. b. Response to Contention(s): (1) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant possessing and distributing marijuana, assaulting the spouse, and wrongfully intimidating and harassing witnesses is not an acceptable response to nor related to dealing with family issues. (2) The applicant contends being forced to go through a separation Board. The applicant went through the chain of command but was not successful. The Board determined that the applicant's separation board was necessary in relation to the years served. The findings of the Board were considered by the separation authority and there is no evidence of the command acting in an arbitrary or capricious manner. (3) The applicant contends good service, including four combat tours. 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 on the Army, and was prejudicial to good order and discipline. By possessing and distributing marijuana; assaulting the spouse; and wrongfully intimidating and harassing witnesses, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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, the applicant's Adjustment Disorder and Anxiety did not mitigate the offenses of possessing and distributing marijuana, assaulting the spouse, and wrongfully intimidating and harassing witnesses. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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 AR20210002797 1