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: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, after recently reading both the "Hagel Memo" and "Kurto Memo," the applicant believes the case warrants a review. The applicant respectfully requests an upgrade based on the belief the discharge was inequitable due to several mitigating factors, including mental health misdiagnoses while serving with untreated PTSD and TBI. These are reflected in the applicant's records and personal statement included with the application. Before the incidents in 2017, the applicant was never in any trouble with the Army or the law. The applicant had an exemplary record with numerous achievements and accomplished more than 90 percent of the Soldiers with the same tenure as the applicant. The applicant's company commander tried to get the applicant honorably discharged. Still, the post commander made the final decision for the applicant to receive the general (under honorable conditions) discharge for "Misconduct (Serious Offense)." The applicant wanted to argue the discharge however was advised by the attorney not to do so because the discharge could be changed to an other than honorable conditions discharge. The applicant would lose all benefits, which would have prevented the applicant from receiving any further medical and psychiatric care, and the ability to take care of the applicant and the applicant's child, while the applicant pursued other careers. Because of this fear, the applicant decided to waive the rights to recourse and is currently unemployed and left with a $25,000 debt. After recently reading the Hagel Memo and Kurta Memo, the applicant believes the case warrants a review. The applicant hopes this statement shows the Board the applicant's desire to receive the appropriate professional help in the years before the incidents which led to the applicant being discharged. The applicant also continues to actively seek out and get help to live a conscientious life and make a positive contribution to society. The applicant would like the Board to see the offenses caused by the PTSD, TBI, and severe personal and family problems (due to these issues) do not outweigh the years of faithful service to the applicant's country. The applicant truly believes if the applicant had been correctly diagnosed and received treatment with both PTSD and TBI in 2016 when the applicant first actively sought help, the applicant would still be enlisted and positively impact the country. The applicant's life would not have taken the negative turn it did. The general (under honorable conditions) discharge for misconduct imposes a lifetime of stigma and impairs the applicant's employment prospects which the applicant believes are unjust. The applicant hopes the record, accomplishments, length of service, and deployments reflect the applicant's dedication to the Army and the strength of the applicant's character. In a records review conducted on 24 May 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-4 / General (Under Honorable Conditions) b. Date of Discharge: 12 January 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 September 2017 (2) Basis for Separation: The applicant was informed of the following reasons: For fleeing or attempting to flee, from apprehension by a law enforcement officer on 12 July 2017. This is in violation of Article 95 UCMJ. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 29 September 2016 and 14 December 2017 (5) Administrative Separation Board: On 29 September 2016, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than honorable discharge. On 28 November 2017, the conditional waiver was disapproved and the applicant was referred to an Administrative Separation Board. On 14 December 2017, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 19 December 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 April 2017 / 6 years b. Age at Enlistment / Education / GT Score: 31 / GED / 111 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B20, Infantryman / 9 years, 9 months, 7 days d. Prior Service / Characterizations: RA, 6 January 2005 - 20 October 2005 / UNC (Break in Service) ARNG, 21 January 2009 - 17 February 2009 / NA IADT, 18 February 2009 - 5 June 2009 / UNC ARNG, 6 June 2009 - 27 January 2010 / HD RA, 28 January 2010 - 23 August 2012 / HD RA, 24 August 2012 - 7 May 2015 / HD RA, 8 May 2015 - 20 April 2017 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (31 May 2012 - 22 February 2013; 3 July 2016 - 5 August 2016) f. Awards and Decorations: ACM-2CS, ARCOM-3, AAM-4, NDSM, GWOTSM, KDSM, NCOPDR, ASR, OSR-2, NATOMDL g. Performance Ratings: 23 October 2017 - 12 January 2018 / Qualified h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 15 February 2017, for violating a lawful general regulation, to wit: Army Regulation 530-1.2 22(2)(e), dated 26 September 2014, by wrongfully using a classified manifest to break a rental agreement. The punishment consisted of a reduction to E-4; forfeiture of $1,267.00 pay; $633.50, pay suspended; extra duty and restriction for 45 days; and, oral reprimand. Alabama Uniform Incident/Offense Report, dated 12 July 2017, reflects the applicant was charged with Domestic Violence Second Degree (Burglary 2nd Degree); Domestic Violence Second Degree (Criminal Mischief 1st Degree); and Fleeing or Attempting to Elude Law Enforcement Officer. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided medical records which reflect the applicant was being treated for TBI and PTSD in 2017 while on active duty. The applicant provided a copy of VA Health Summary, dated 20 August 2018, which reflects the applicant was diagnosed with PTSD, TBI, Major Depressive Disorder, and General Anxiety Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; third party letter; DA Form 2166-9-1; DD Form 2807-1; DD Form 2808; DD Form 2697; DD Form 4/1; DD Form 4/2; DA Form 3340; ERB; DA Form 2627; DA Form 2823; DA Form 4856; DA Form 268; DA Form 4789; photos; Alabama Uniform Incident/Offense Report; VA Health Summary; Medical Records. 6. POST SERVICE ACCOMPLISHMENTS: Since July 2017, the applicant has remained out of trouble and has been actively seeking help. 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends being diagnosed with PTSD, Anxiety Disorder and TBI by the VA. The applicant provided VA medical documents indicating the applicant was diagnosed with PTSD, TBI, Major Depressive Disorder and General Anxiety Disorder. The applicant provided medical records which reflect the applicant was being treated for TBI and PTSD while on active duty. AMHRR does not contain a mental status evaluation (MSE). The applicant contends good service, including two combat tours. The Board considered the service accomplishments and the quality of service. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. 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 since July 2017, the applicant has remained out of trouble and has been actively seeking help. 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. AHLTA contains in-service BH diagnoses of Adjustment Disorder, Adult psychological abuse, suspected, Antisocial Personality Disorder, Anxiety Disorder, ADHD, Child Neglect and abandonment suspected, PTSD, Problems in relationship with spouse, and Problems related to other legal circumstances. JLV contains additional post-service BH diagnoses of Mood Disorder due to known physiological condition, Personal history of TBI, and Major Depression. The applicant is 100% service connected for PTSD, and this BH condition, along with applicant's other noted BH conditions may mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant's Adjustment Disorder, Adult psychological abuse, suspected, Antisocial Personality Disorder, Anxiety Disorder, ADHD, Child Neglect and abandonment suspected, PTSD, Problems in relationship with spouse, and Problems related to other legal circumstances, as well as PTSD are service-connected, however, applicant's Mood Disorder due to known physiological condition, TBI, and Major Depression are not service connected. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that although the applicant has service-connected PTSD, that BH condition and other applicant BH conditions do not mitigate applicant's misconduct that was the basis for applicant's separation because domestic violence (burglary and criminal mischief) and fleeing from law enforcement, applicant's misconduct, are not part of the sequela of symptoms associated with PTSD or other applicant BH conditions. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the Board's Medical Advisor, that the applicant's PTSD and other BH conditions do not outweigh the unmitigated misconduct that was the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends being diagnosed with PTSD, Anxiety Disorder and TBI by the VA. The Board liberally considered this contention, but determined these BH conditions to include PTSD are not mitigating factors for applicant's misconduct, specifically domestic violence (burglary and criminal mischief) and fleeing from law enforcement are not part of the sequela of symptoms associated with PTSD or applicant's other BH conditions. (2) The applicant contends good service, including two 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 fleeing or attempting to flee, from apprehension by a law enforcement officer, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) 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. 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 PTSD and other behavioral health conditions do not outweigh the unmitigated offenses of domestic violence (burglary and criminal mischief) and fleeing from law enforcement, and the discharge was both proper and equitable. 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 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 AR20210002952 1