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: 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, the applicant’s Enlisted Record Brief (ERB) reflects the applicant’s dedication to duty and service. The applicant states that the applicant served for 13 years and was deployed on five occasions. The applicant states the applicant was found “Not Guilty” at a general court-martial but was ultimately discharged. The applicant states that the applicant was reduced in rank to E-1, which should not have happened. The applicant states that the applicant received four ARCOMs, two AAMs, the AGCM, and several other awards. The applicant states that the applicant’s ERB reflects each duty title held was in a leadership position. The applicant states that Baghdad, Diwaniyah, Kuwait, and Fort Riley were all hazardous environments where lives were at risk. The applicant claims to have performed the duties honorably, but cannot receive the basic assistance for housing and medical. The applicant states that the applicant has issues related to the military service which prevent the applicant from attaining gainful employment. The applicant claims to have been denied the right to be seen by a doctor because of qualification issues and the medical records were lost; therefore, the applicant claims that all the information regarding the applicant’s condition is lost. The applicant’s claims that the applicant leave days were forfeited but they should not have been. The applicant claims that the applicant was denied all services as if the applicant never deployed to Iraq or served the country honorably. In a records review conducted on 9 June 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, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 March 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 October 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On 16 September 2007, the applicant stole three PlayStation video games from the Fort Knox PX. On 6 May 2008, the applicant was arrested for driving without a valid driver’s license. The applicant had sexual intercourse with W.T., a married woman not the applicant’s spouse between 1 and 30 June 2008. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 18 November 2008 (5) Administrative Separation Board: On 5 December 2008, the applicant was notified to appear before an administrative separation board and advised of rights. On 30 January 2009, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 10 February 2009, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 10 February 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 July 2007 / 3 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W10, Health Care Specialist / 11 years, 4 months, 13 days d. Prior Service / Characterizations: USAR, 5 November 1996 – 1 April 2002 / NA ADT, 22 July 1997 – 9 April 1998 / HD (Concurrent Service) RA, 2 April 2002 – 4 April 2004 / HD RA, 5 April 2004 – 19 July 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (4 March 2003 – 13 July 2003; 17 June 2004 – 17 June 2005); Kuwait (2 May 2002 – 31 October 2002) f. Awards and Decorations: ARCOM-4, AGCM, NDSM, AFEM, GWOTSM, GWOTEM, ICM-2BSS, ASR, OSR-3, CMB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Provost Martial Office Information Work Sheets reflects the applicant and the applicant’s spouse were investigated for shoplifting: Sworn Statement from Specialist (SPC) J.A., military police, dated 16 September 2007, reflects SPC J.A. and another officer were dispatched to the Army Air Force and Exchange Service (AAFES) due to a shoplifting in progress. The military police arrived at AAFES and the applicant and the applicant’s spouse were exiting the building. The military police stopped both individuals and the spouse stated the applicant had nothing to do with it. The officers found three video games worth $1800 in the spouse’s purse. Sworn Statement from SPC E.B., military police officer, dated 16 September 2009, provided further details regarding the shoplifting incident, adding the applicant and the spouse were transported to the military police station for further processing. The applicant continued to provide false information to the investigator and the police about helping the spouse remove the items from the PX. The security video clearly showed the applicant’s intent. Military Police Report, dated 6 May 2008, reflects the applicant was apprehended for: Driver’s License Required, under 92, UCMJ (On Post). Investigation revealed officers responded for an individual with no operator’s license and the operator was identified to be the applicant. An NCIC check of the applicant’s Ohio State Operator’s License revealed it to be for identification only. The applicant was apprehended and transported to the Fort Riley Police Station. Ohio Bureau of Motor Vehicles Reinstatement of Driving Privileges, dated 28 October 2007, reflects the applicant driving privileges and registration privileges were restored. The letter permitted the applicant to operate a motor vehicle for 90 days while the BMV/LEADS computer record were cleared. If the applicant was not in possession of the driver’s license, the applicant was instructed to apply for a duplicate license. Developmental Counseling Form, dated 6 May 2008, for being arrested for driving without a valid driver’s license. Military Police Report, dated 17 September 2008, reflects the applicant was apprehended for: Assault under Article 128, UCMJ (On Post). Investigation revealed Ws. T. and Wl. T. were involved in a verbal altercation, which turned physical when Wl. T. attempted to stab Ws. T. with a knife. The applicant grabbed the knife from Wl. T. and threatened to punch Ws. T. in the face. The police issued Wl. T. a DD Form 1805 and Wl. T. was released at the scene. The applicant was apprehended and transported to the Fort Riley Police Station. Further investigation revealed Ws. T., admitted to having a sexual intercourse with Wl. T.’s spouse, the applicant, for several months and knew the applicant was the parent of Ws. T.’s child. Ws. T. was married, but Ws. T.’s spouse was deployed and they were going to get divorce when the spouse returned. The applicant’s spouse invited Ws. T. to the home to discuss the alleged pregnancy. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: During the administrative separation board proceedings on 5 December 2008, the applicant stated after returning from Iraq, the applicant self-referred to mental health because of anger issues. The applicant was informed by medical personnel of having PTSD, but the applicant denied having the medical condition and admitted to being depressed. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; DD Form 293; separation orders; Enlisted Record Brief. 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 14-12c 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. (7) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant’s testimony contained in the Summarized Record of the Applicant’s Administrative Board states that post-deployment (Iraq), the applicant attended about 12 mental health sessions for anger management during which the applicant was told that the applicant had PTSD and was depressed. The applicant disagreed with having PTSD. The applicant’s AMHRR contains no documentation of a PTSD diagnosis. The AMHRR is void of a mental status evaluation. The applicant contends being found “Not Guilty” at a general court-martial but was ultimately discharged. The AMHRR is void of any record of general court-martial. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including combat tours. The Board considered the service accomplishments and the quality of service. 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 an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends that the applicant was reduced in rank to an E-1 which should not have happened. The applicant contends that the applicant was denied the right to been seen by a doctor because of qualification issues and the medical records were lost; therefore, the applicant claims that all the information regarding the applicant’s condition is lost The applicant contends the leave days were forfeited and should not have been. The applicant’s request does not fall within this board’s purview. If the applicant had a leave balance, or were owed money for any other reason at the time of separation, the applicant may apply to the Defense Finance and Accounting Service, Indianapolis (DFAS-IN) for any monetary. Mail the documents to DFAS-IN, 8899 East 56th Street, Department 3300 (ATTN: COR/Claims), Indianapolis, IN 46249-3300. 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’s Chronic Reaction to Stress associated with combat and PTSD may mitigate the basis for the applicant’s separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s Chronic Reaction to Stress associated with combat and PTSD existed during military service. (3) Does the condition or experience excuse or mitigate the discharge? No. After liberal consideration, the Board's Medical Advisor determined that the applicant’s Chronic Reaction to Stress associated with combat and PTSD do not mitigate the applicant’s offenses of theft, driving without a driver’s license, or having an extra-marital affair as there is no association between PTSD and theft, driving without a driver’s license, or having an extra-marital affair given that PTSD does not interfere the ability to distinguish between right and wrong. (4) Does the condition or experience outweigh the discharge? No. After liberal consideration, the Board concurred with the Board’s Medical Advisor, and determined that the applicant’s Chronic Reaction to Stress associated with combat and PTSD do not outweigh applicant’s unmitigated basis of separation - offenses of theft, driving without a driver’s license, or having an extra-marital affair as there is no association between PTSD and theft, driving without a driver’s license, or having an extra-marital affair. b. Response to Contention(s): (1) The applicant contends that medical personnel indicated the applicant had PTSD after returning from deployment in Iraq,. The Board considered this contention and determined this contention was valid after review of the applicant's DOD and VA health records which revealed the applicant’s Chronic Reaction to Stress associated with combat PTSD. (2) The applicant contends being found “Not Guilty” at a general court-martial but was ultimately discharged. The Board considered this contention and determined that, without providing supporting documentation, the applicant’s assertion alone did not outweigh the basis of separation due to the severity of the offenses. (3) The applicant contends good service, including combat tours. The Board considered this contention and 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 theft, driving without a driver’s license, or having an extra-marital affair, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends an upgrade of the discharge would allow veterans benefits. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. (5) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. (6) The applicant contends the leave days were forfeited and should not have been. The Board determined that the applicant’s contention of forfeited leave days does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. (7) The applicant contends that the applicant was reduced in rank to an E-1 which should not have happened. (8) The applicant contends that the applicant was denied the right to been seen by a doctor because of qualification issues and the medical records were lost; therefore, the applicant claims that all the information regarding the applicant’s condition is lost 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, the applicant’s Chronic Reaction to Stress and PTSD did not outweigh the unmitigated offenses of theft, driving without a driver’s license, or having an extra-marital affair. The applicant did not supply sufficient evidence to support contentions, and 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 discharge was proper and equitable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code 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 AR20210002904 1