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 discharge was inequitable because the applicant’s total capabilities were diminished at the time of discharge. Specifically, the applicant claims the misconduct directly resulted from the applicant’s now-diagnosed service-connected PTSD, which diminished the applicant’s capability to serve. The applicant claims that during the applicant’s time serving in active combat in Iraq, the applicant went above and beyond the required duties and earned multiple commendations for service. The applicant claims the discharge was improper because the separating officer did not consider the applicant’s mental condition in characterizing the applicant’s service, despite reported symptoms of PTSD and a recognized change in behavior, which was an arbitrary and capricious action the contributing to the characterization of the applicant’s service. In a records review conducted on 14 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 / AR 635-200, Chapter 14- 12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 24 May 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 April 2005 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to report on many occasions, fled the scene of an accident once, went beyond pass limits without lawful authority once, derelict in the performance of duties many times, and committed larceny once. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 April 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 May 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 June 2003 / 3 years b. Age at Enlistment / Education / GT Score: 19 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-3 / 52D10, Power-Generation Equipment Repairer / 1 year, 11 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (14 August 2003 – 14 September 2003 / The applicant’s DD Form 214, Record of Service, block 12 F, reflects 1 year, 1 month, 1 day. f. Awards and Decorations: NDSM, GWOTSM, GWOTEM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 14 April 2005, for stealing a Sony Play Station 2 of a value of about $149, the property of AAFES. The punishment consisted of a reduction to E-1; forfeiture of $617 pay per month for two months and, extra duty and restriction for 45 days. Report of Mental Status Evaluation, dated 19 April 2005, 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. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a VA Rating Decision, dated 21 October 2015, which reflects a diagnosis of 70 percent service-connected disability for PTSD. The applicant provided a medical evaluation, dated 15 May 2018, from Doctor R. which reflects a diagnoses of PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal brief with Exhibits 1 through 34. 6. POST SERVICE ACCOMPLISHMENTS: The applicant began attending counseling at the VA; has made steady progress with treatment; and, has gradually developed the ability to cope with PTSD more constructively with each passing year. The applicant quit smoking in February 2016, quit marijuana later in the year, and gradually reduced and ultimately quit alcohol use later in the fall. 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. (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 “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 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. Based on the AMHRR, someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as “Misconduct.” The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Pattern of Misconduct. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Pattern of Misconduct,” and the separation code is “JKA.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends suffering from undiagnosed PTSD, which affected behavior and led to the discharge. The applicant’s AMHRR contains no documentation of PTSD diagnosis. The applicant did submit evidence to support the contention the discharge resulted from a medical condition. The applicant provided a VA Rating Decision, dated 21 October 2015, which reflects a diagnosis of 70 percent service-connected disability for PTSD. The applicant provided a medical evaluation, dated 15 May 2018, from Doctor R. which reflects a diagnosis of PTSD. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 19 April 2005, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends other Soldiers with similar offenses were granted upgrades from general to honorable. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends attending counseling at the VA and made steady progress with treatment. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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. Applicant is diagnosed and service connected by the VA with combat-related PTSD that could mitigate some of the applicant’s basis for separation. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed, and service connected by the VA with combat-related PTSD. Service connection establishes that applicant's PTSD existed during military service. (3) Does the condition or experience excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, opined that given the nexus between applicant’s PTSD and avoidance, applicant’s PTSD mitigated applicant’s FTRs. However, applicant’s PTSD was not associated with and does not mitigate any of the other misconduct that was the basis for applicant’s separation (i.e., fleeing the scene of an accident, going beyond pass limits, derelict in the performance of duties, and larceny) since PTSD does not impact one’s ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB concurred with the Board’s Medical Advisor, and voted that applicant’s PTSD did not outweigh fleeing the scene of an accident, going beyond pass limits, derelict in the performance of duties, and larceny that were the unmitigated basis of applicant’s separation. b. Response to Contention(s): (1) The applicant contends having PTSD. The Board liberally considered this contention but determined that applicant’s PTSD did not outweigh fleeing the scene of an accident, going beyond pass limits, derelict in the performance of duties, and larceny that were the unmitigated basis of applicant’s separation. (2) 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 on the Army and was prejudicial to good order and discipline. By fleeing the scene of an accident, going beyond pass limits, derelict in the performance of duties, and larceny, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) The applicant contends other Soldiers with similar offenses were granted upgrades from general to honorable. The Board considered this contention and determined that in this case, the applicant’s PTSD did not outweigh fleeing the scene of an accident, going beyond pass limits, derelict in the performance of duties, and larceny that were the unmitigated basis of applicant’s separation, and the current discharge was both proper and equitable. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 PTSD did not outweigh the unmitigated offenses of fleeing the scene of an accident, going beyond pass limits, derelict in the performance of duties, and larceny, and the discharge characterization was both proper and equitable. 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 narrative reason for discharge or accompanying SPD code because this narrative and SPD code are both proper and equitable, but nonetheless order a new DD214 to reflect the more accurate narrative of “pattern of misconduct” IAW AR 635-5-1. (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: Yes b. Change Characterization to: No Change c. Change Reason / SPD Code to: Change “misconduct” to “pattern of misconduct” 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 AR20210002931 1