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, during the time in the military, the applicant was going through physical and mental pain, but did not understand. The applicant was diagnosed with Major Depressive Disorder, moderate, chronic, with anxious distress and Generalized Anxiety Disorder. The applicant received a VA disability rating of 70 percent for these illnesses and 90 percent overall. Additionally, the applicant claims applicant was diagnosed with Sleep Apnea, which was a factor with the mental health and not receiving the amount of sleep needed to function. The applicant claims applicant loved the time in the military, but within those six years, three years plus in deployments, Iraq, Afghanistan, and Korea, and in training; the applicant lost connection to life, family, and self and turned to alcohol to help cope with the unknown. The applicant claims applicant reenlisted in hopes of becoming a career Soldier and applied to join the Special Forces, but was discharged before being able to attend. Looking back at the record and awards, the applicant claims applicant was on a fast track from Private First Class to Sergeant. The applicant claims applicant became the Truck Master, Training NCOIC, Orderly Room NCOIC, Ammunition Specialist, and was the right hand to both the First Sergeant and company commander. The applicant claims applicant let personal life get in the way of career and made bad choices towards the end, but it does not define the applicant. After discharge, the applicant claims applicant received a Nursing Diploma; Associates, Bachelors, and Master's Degrees; and, currently enrolled in a Doctorate Program. The applicant claims VA's services helped the applicant improve and life is back on track. The applicant received help with alcoholism, depression, social life, relationships, family, and most importantly, self. The applicant claims applicant gained custody of the children, remarried, and added a beautiful daughter to the Family. The applicant claims applicant has become a role model to the children, and to other veterans, by sharing the life story. The applicant claims applicant served the country, serving in two campaigns, OIF and OEF; and, believes an honorable discharge is deserved and the mental health conditions was a huge contributor to the actions which led to the discharge. The applicant claims applicant was an outstanding Soldier and requests reevaluation of the discharge, considering all accomplishments, in service and out of the service. In a records review conducted on 12 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 September 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 August 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to report to extra duty on 15 July 2009, and first formation on, 23 March, 1, 8, and 28 April, and 15 July 2009. The applicant disobeyed Captain (CPT) K.S., on multiple occasions by not setting up an allotment for the support of the family; therefore, failing to provide support in accordance with AR 608-99, for multiple months. The applicant assaulted Specialist (SPC) T.M. by grabbing the arm with the hand and violated the no-contact order by having contact with SPC T.M. The applicant disrespected CPT R.F. on multiple occasions between 25 and 28 March 2008. The applicant was convicted of driving while under the influence of alcohol on 6 November 2007. The applicant was derelict in the duty by failing to properly observe a Soldier void a specimen into a sample bottle during a command directed urinalysis on 15 February 2007. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 27 August 2009 (5) Administrative Separation Board: On 27 August 2009, 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). (6) Separation Decision Date / Characterization: 22 September 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 February 2006 / 6 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 88M10, Motor Transport Operator / 6 years d. Prior Service / Characterizations: RA, 1 October 2003 - 31 January 2006 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (18 January 2008 - 3 January 2009); Iraq (18 September 2005 - 18 September 2006) f. Awards and Decorations: ACM-CS; ICM-2CS, ARCOM, AAM-3, JMUA, MUC, AGCM, NDSM, GWOTSM, KDSM, NCOPDR, ASR, OSR-3, NATOMDL g. Performance Ratings: 1 July 2006 - 30 June 2007 / Marginal 1 July 2007 - 14 May 2008 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Receipt for Inmate for Detained Person, dated 5 July 2007, reflects the applicant was detained for Verbal Domestic. Military Protective Order, undated, was issued against the applicant for the spouse as the protected person. Commonwealth of Kentucky Probation Order, dated 6 November 2007, reflects the applicant was sentenced to confinement for 30 days for Driving Under the Influence, which was suspended and the applicant was placed on probation for two years. The applicant was fined $797 and ordered to attend all alcohol or other substance abuse treatment appointments. Administrative Orders Based on Misconduct, dated 30 January 2008, reflects the applicant's commander issued a no-alcohol order to the applicant surrounding DUI offense. Memorandum, subject: [Applicant's] failure to financially support the family, dated 23 February 2008, reflects the applicant's spouse contacted the applicant's commander because the applicant was ordered to begin an allotment, but the allotment was discontinued for the November 2007 pay period, shortly after receiving a DUI conviction and the applicant became short of money. FG Article 15, dated 1 March 2008, for willfully disobeying a lawful command from CPT K.S., to set up a monthly allotment to the spouse, no later than 9 July 2007, in the amount of one month's Basic Allowance for Housing Reserve Component/Transient with dependents (BAH RC/T) (9 July 2009) and violating a lawful general regulation by wrongfully failing to provide financial support to the spouse (1 November 2007). The punishment consisted of a reduction to E-4 (suspended); forfeiture of $1,118 pay per month for two months (suspended); extra duty and restriction for 30 days; and, an oral reprimand. Record of Supplementary Action Under Article 15, UCMJ, dated 14 May 2008, reflects the suspended portion of the punishment imposed on 1 March 2008, was vacated for: Article 89, on three occasions, behave with disrespect toward CPT R.F. (25, 27 March and 2 April 2008). FG Article 15, dated 26 May 2008, for on five occasions behaving with disrespect towards CPT R.F. (25, 26, 27, 28 March and 2 April 2008). The punishment consisted of a reduction to E-1 (suspended); forfeiture of $724 pay per month for two months (suspended); extra duty and restriction for 45 days; and, oral reprimand. Administrative Orders Based on Misconduct, dated 18 November 2008, reflects the applicant's commander issued a no-contact order to the applicant not to contact SPC T.M., surrounding allegations by SPC T.M. surrounding an event on 15 November 2008. Administrative Orders Based on Misconduct, dated 1 May 2009, reflects the applicant's commander issued a no-contact order to the applicant not to contact SPC T.M., surrounding allegations of assault by SPC T.M. CG Article 15, dated 10 July 2009, for on four occasions, failing to go at the time prescribed to the appointed place of duty (23 March and 1, 8, 28 April 2009) and disobeying a lawful command from J.B. to have no contact with SPC T.M. (1 May 2009). The punishment consisted of a reduction to E-3; forfeiture of $433 pay; and, extra duty for 14 days. Bar to Reenlistment Certificate, dated 17 July 2009, reflects a bar to reenlistment was initiated against the applicant for various acts of misconduct and approved on 22 July 2009. Summarized Article 15, dated 28 July 2009, for failing to go at the time prescribed to the appointed place of duty (15 July 2009). The punishment consisted of extra duty for 14 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 29 July 2009, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The applicant was diagnosed with Alcohol Abuse and Occupational Problems. The applicant was screened for PTSD and TBI with negative results. Report of Medical History, dated 30 July 2009, the examining medical physician noted in the comments section: Stress; Insomnia secondary to stress. The applicant provided VA Disability snapshot, undated, reflecting rated disabilities, which shows the applicant was received a final degree of disability of 90 percent and Major Depressive Disorder was listed, but the document did not reflect the disability rating for the condition. The applicant provided VA letter, dated 26 October 2020, reflecting the applicant was rated 90 percent disability, but did not reflect the medical conditions involved in the rating decision. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; two third party statements; college transcripts; VA Disability Rating snap shot; two VA letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends attaining Nursing Diploma; Associates, Bachelors, and Master's Degrees; being enrolled in Doctorate Program; receiving assistance for mental health issues and improving with life back on track; and becoming a role model for the children and other veterans. 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 a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends Major Depression Disorder, moderate, chronic, with anxious distress; Generalized Anxiety Disorder; and Sleep Apnea affected behavior and led to the discharge and, the conditions were diagnosed by the VA. The applicant provided medical documents indicating he was diagnosed with Major Depressive Disorder and the VA rated the applicant 90 percent disability, but the document does not reflect the specific rating provided for the Major Depressive Disorder of any other medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 29 July 2009, which indicates the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The applicant was diagnosed with Alcohol Abuse and Occupational Problems. The MSE was considered by the separation authority. The applicant contends good service, including two combat tours. The third party statements provided with the application speak highly of the applicant and recognize the applicant's good conduct after leaving the Army. The Board considered the service accomplishments and the quality of service. The applicant contends attaining Nursing Diploma, Associates, Bachelors, and Master's Degrees; being enrolled in Doctorate Program; receiving assistance for mental health issues and improving with life back on track; and becoming a role model for the children and other veterans. 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 and found applicant's Major Depressive Disorder could mitigate some of 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 service connected by the VA with Major Depressive Disorder (MDD). (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, opined that given the nexus between applicant's MDD and self-medicating with substances, applicant's MDD mitigates applicant's DUI, however, there is no association between applicant's other misconduct and applicant's MDD, so the remaining misconduct is not mitigated. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's MDD did not outweigh the unmitigated basis for applicant's separation of FTR, dereliction of duty, disobeyed orders, disrespect, failure to provide support, and assault. b. Response to Contention(s): (1) The applicant contends Major Depression Disorder, moderate, chronic, with anxious distress; Generalized Anxiety Disorder; and Sleep Apnea affected behavior and led to the discharge and, the conditions were diagnosed by the VA. The Board liberally considered this contention, however, the applicant's BH conditions did not outweigh the unmitigated basis of applicant's separation and voted the discharge was proper and equitable. (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 the unmitigated FTR, dereliction of duty, disobeyed orders, disrespect, failure to provide support, and assault, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. 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 BH diagnoses of Major Depressive Disorder and Adjustment Disorder did not outweigh the unmitigated offenses of FTR, dereliction of duty, disobeyed orders, disrespect, failure to provide support, and assault, 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 AR20210002978 1