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 serving in Iraq, the applicant returned to the unit and in January 2010, was diagnosed with a TBI and PTSD. The applicant began to be placed on many different medications and sought treatment, which had a large impact on the applicant’s memory, recall and behavior, specifically mood. At the time, the applicant did not recognize the connection between the brain injury, the medications and the applicant’s behavior. In May 2010, the applicant was admitted to a Psychiatric hospital for these issues. Instead of being transferred to the WTU as discussed, the applicant was PCS’d to Fort Bliss. The new unit immediately treated the applicant as a problem Soldier due the medical issues and profile for these and other issues. In September 2010, the applicant was recommended for MEB. The unit instead began to process a Chapter 5-17. The applicant was confused by the many separation appointments, being notified the day of by the unit. This led to the unit processing an Article 15 for lying about two appointments related to the Chapter 5-17, when in fact the applicant forgot about having an appointment. When the applicant’s spouse gave birth, the unit refused to let the applicant stay with spouse or have the ten-day paternity leave. This led to very erratic and angry behavior. The applicant was questioned without being read rights about who the applicant was upset at, which led to the unit accusing the applicant of threatening the 1SG and Commander. They changed the separation from 5-17 to a pattern of misconduct chapter, including a doctor’s note from a physician the applicant never saw stating the applicant was fit for duty. The separation stated they attempted rehabilitation, a requirement for this chapter, yet their supporting documentation showed nothing of the sort was done. The applicant was again hospitalized and upon release, the applicant was served separation processing paperwork for a general discharge misconduct chapter. The majority of the chain of command who were involved in the Article 15 and separation were later reprimanded for forcing Soldiers out of the Army, and many received unfavorable actions up to and including dismissal. This fact, taken along with the absolute disregard for the applicant’s diagnosis and the recommendations of the medical support team, the applicant believes it shows a pattern of hostility and mistreatment towards the applicant and the applicant’s family. Immediately following the separation and return to the state of record, the Veterans Administration service-connected the TBI and PTSD with a rating of 80 percent and now 90 percent, further calling into question the moral reasoning for the unit to proceed the way they did. In a records review conducted on 18 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) a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 December 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 December 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 6 December 2010, the applicant communicated a threat towards CPT O. and 1SG H. On 29 November 2010, the applicant made two false official statements, one to SFC B. R. and another to 1SG T. H. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 14 December 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 December 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2007 / 4 years, 18 weeks b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Calvary Scout / 3 years, 9 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Iraq (23 December 2008 – 7 November 2009) f. Awards and Decorations: JMUA, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 6 December 2010, on or about 23 November 2010, with intent to deceive, make to 1SG T. H., a false statement, to wit: the applicant stated the applicant had a scheduled medical appointment, which statement was totally false, and was then known by the applicant to be so false; on or about 23 November 2010, with intent to deceive, make to SFC B. R., a false statement, to wit: the applicant stated the applicant had a scheduled medical appointment, which statement was totally false, and was then known by the applicant to be so false. The punishment consisted of a reduction to E-2; forfeiture of $378 pay; and, extra duty and restriction for 14 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile, dated 19 May 2010, reflects the applicant had a permanent profile for: depression, TBI with exertional headache. Report of Medical History, dated 9 September 2010, reflects the applicant stated having TBI issues in 2007 and 2008. It is further noted the applicant had been diagnosed with PTSD and was being treated and seen by behavioral health. Report of Behavioral Health Evaluation, dated 15 November 2010, reflects the applicant has the mental capacity to understand and participate in administrative proceedings. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. The applicant was diagnosed with: Axis I: Adjustment Disorder with Anxiety and Depressed Mood A Typical Depressive Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; affidavit from spouse; separation packet; MEB Referral; Physical Exam Form; Report of Medical History; Fit for Duty Memorandum; DA Form 2627; DA Form 4856; DA Form 2823. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends being diagnosed with TBI and PTSD after serving in Iraq; and has been granted 90 percent service-connected for TBI and PTSD by the VA. The record shows the applicant underwent a behavioral health evaluation (BHE) on 15 November 2010, which indicates the applicant was mentally responsible and has the mental capacity to understand and participate in administrative proceedings. The applicant was diagnosed with Axis I: Adjustment Disorder with Anxiety and Depressed Mood A Typical Depressive Disorder. The BHE was considered by the separation authority. Report of Medical History, dated 9 September 2010, reflects the applicant stated having TBI issues in 2007 and 2008. It is further noted the applicant had been diagnosed with PTSD and was being treated and seen by behavioral health. The applicant did not submit any evidence to support the VA rating. The applicant contends after being diagnosed with TBI and PTSD the applicant was PCS’d instead of being transferred to the WTU and the new unit treated the applicant as a problem Soldier due to the medical issues. The applicant also contends that the command ignored the mental health issues and diagnoses which led to a pattern of hostility and mistreatments towards the applicant and the applicant’s family. The applicant provided profile that reflects a S3 for Depression and TBI with exertional headaches and a recommendation for referral to the WTU based on PTSD diagnosis. The applicant’s official medical records include evidence that the Command referred the applicant to an MEB, which resulted in the applicant was found fit for duty. AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being recommended for MEB instead the unit began to process the applicant for Chapter 5-17 discharge. The applicant’s official medical records include evidence that the Command referred the applicant to an MEB, which resulted in the applicant was found fit for duty Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. 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 DoD and VA medical records, applicant submissions and third party statements, and found the applicant’s Adjustment Disorder, Anxiety Disorder, Atypical Depression, PTSD, Bipolar Disorder, TBI and Concussion could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant’s Adjustment Disorder, Anxiety Disorder, Atypical Depression, Concussion, PTSD, Bipolar Disorder, and TBI existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After liberal consideration, the Board's Medical Advisor opined that of the applicant’s Adjustment Disorder, Anxiety Disorder, Atypical Depression, Concussion, PTSD, Bipolar Disorder, and TBI do not mitigate the applicants basis for separation - communicating threats and making false statements are not part of the sequela associated with the applicant’s BH conditions. (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, and determined that the applicant’s Adjustment Disorder, Anxiety Disorder, Atypical Depression, Concussion, PTSD, Bipolar Disorder, and TBI do not outweighed the basis for applicant’s separation – communicating a threat and making false official statements. b. Response to Contention(s): (1) The applicant contends being diagnosed with TBI and PTSD after serving in Iraq. The Board liberally considered and determined that the TBI and other BH disorders do not outweigh the applicant’s unmitigated basis for separation - communicating threats and making false statements, the discharge is proper and equitable. (2) The applicant contends after being diagnosed with TBI and PTSD the applicant was PCS’d instead of being transferred to the WTU and the new unit treated the applicant as a problem Soldier due to the medical issues. The applicant also contends that the command ignored the mental health issues and diagnoses which led to a pattern of hostility and mistreatments towards the applicant and the applicant’s family. The Board considered this contention and determined that the applicant was referred to an MEB in accordance AR 40-400, received a BH evaluation, and was found fit for duty. Further, the Board found the applicant’s TBI and other BH conditions do not outweigh the applicant’s basis of separation - misconduct of communicating threats and making false statements. The Board also found no evidence that the command acted in an arbitrary or capricious manner. Therefore the applicant’s discharge is proper and equitable. (3) The applicant contends being recommended for MEB instead the unit began to process the applicant for Chapter 5-17 discharge. The Board considered this contention and determined that the applicant was referred to an MEB in accordance AR 40-400, received a BH evaluation, and was found fit for duty. The Board also found that the applicant’s official record reflects that a MSE was conducted for purposes of the command initiating a Chapter 5-17 discharge prior to the applicant’s offenses of communicating a threat and making two false official statements that serve the basis of the applicant’s Chapter 14-12c separation. Therefore, the applicant’s discharge is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration, the Board found that the applicant’s Adjustment Disorder, Anxiety Disorder, Atypical Depression, PTSD, Bipolar Disorder, TBI and Concussion did not outweigh the applicant’s basis of separation - communicating a threat and making false statements. The Board also considered the applicant’s contentions of impropriety (PCS instead of transfer to WTU and the Command ignoring the applicant’s mental health issues) and found that there was no evidence of arbitrary or capricious actions warranting a discharge upgrade. Finally, the Board considered the applicant’s contentions for purposes of inequity (three years of service, including 11 months of combat service) and determined that the totality of the applicant’s record does not warrant a discharge upgrade. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD.. (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 AR20210002962 1