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 honorable. The applicant seeks relief contending, in effect, being assigned to Germany for six months before the discharge and received a counseling statement, but no corrective training. The applicant believes the chain of command was trying to build a case for some reason. The applicant tried to fight the involuntary separation by going through the chain of command, but was stopped and unable to do anything to fight the discharge. Other offenders who were in trouble for the same reasons, only received an Article 15, but were able to continue on with a military career. In a records review conducted on 20 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: 21 December 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 November 2009 (2) Basis for Separation: The applicant was informed of the following reasons: On 17 June 2009, the applicant received a written reprimand from the commander for committing adultery with two Soldiers while at Fort Hood, TX, and disobeyed an order from the squad leader by failing to return to the place of duty at 1400 hours. On 27 August 2009, the applicant made a false official statement to the squad leader, platoon sergeant, and first sergeant (1SG) by saying, “I went to a barbeque at a friend’s house,” when actually going on a Morale Welfare and Recreation (MWR) trip to Munich. On 15 September 2009, the applicant had a disorderly verbal altercation in the A Battery orderly room with the spouse. On 22 September 2009, the applicant failed to return to duty after being released to retrieve the Advanced Combat Helmet (ACH) from home, and disobeyed an order from the squad leader to retrieve the ACH from home by running personal errands during the duty day instead. On 4 October 2009, the applicant violated a no contact order given by the 1SG and battery commander. On 15 October 2009, the applicant failed to report to 0630 formation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 10 November 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 December 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 July 2007 / 5 years / The applicant extended the most recent enlistment by a period of two months on 7 July 2009, giving the applicant a new ETS of: 4 September 2012. b. Age at Enlistment / Education / GT Score: 18 / HS Graduate /115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14T10, Patriot Operator/ Maintainer / 2 years, 5 months, 17 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Letter of Reprimand, dated 17 June 2009, reflects the applicant was under investigation for Adultery for claims of having sexual intercourse with Specialist (SPC) S.M. and SPC S.S. The commander conducted a Commander’s Inquiry and found there was reasonable evidence the claims were true. The applicant admitted to the spouse sleeping with SPC S.S., which the applicant later recanted, indicating it was said to make the spouse angry. Sergeant (SGT) F. made a sworn statement indicating SPC S.M., SGT F’s boyfriend at the time, admitted to SGT F. to sleeping with the applicant. The applicant and SPC S.M. and SPC S.S. deny the allegations, but there is reason to believe the parties committed adultery. Report of Mental Status Evaluation, dated 29 September 2009, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible; able to distinguish right from wrong and adhere to the right; and had the mental capacity to understand participate in the proceedings. The evaluation did not indicate a diagnosis, but AXIS II diagnosis was deferred. The separation documents contain a letter, dated 13 November 2009, from the applicant in rebuttal to separation proceedings, which the applicant argued the adultery allegations were not true; there was no corrective training conducted; and the applicant did not receive a rehabilitation transfer, at least to another battery or brigade, per AR 635-200, paragraphs 14-2 and 1-16. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 the command failed to provide corrective training or rehabilitative transfer. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The AMHRR is void of any evidence of a rehabilitation transfer or the rehabilitation transfer was waived by the separation authority. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends other Soldiers with similar offenses were not discharged. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. 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 was diagnosed with Adjustment Disorder, Unspecified Bipolar Disorder and Depression, which, in the opinion of the Board’s Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in-service with an Adjustment Disorder and post-service by the VA with Unspecified Bipolar Disorder and Depression. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the medical condition does not mitigate the basis of separation. The Board's Medical Advisor opined that there is no evidence that applicant had any mitigating BH conditions during military service. Applicant was diagnosed in-service with an Adjustment Disorder that was diagnosed after and in response to the misconduct that led to separation. And while applicant has been diagnosed post-service by the VA with Unspecified Bipolar Disorder and Depression, there is no evidence that these conditions existed during military service. Furthermore, even if these conditions did exist during service, they would not mitigate disobeying an order, committing adultery, making a false official statement, FTRs and violating a no contact order from commander that led to applicant’s separation. (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 available evidence did not support a conclusion that any of the applicant’s medical conditions of Adjustment Disorder, Unspecified Bipolar Disorder and Depression completely outweighed the basis for applicant’s separation – disobeying an order, committing adultery, making a false official statement, FTRs and violating a no contact order from commander. b. Response to Contention(s): (1) The applicant contends the command failed to provide corrective training or rehabilitative transfer. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. Army Regulation 635-200, paragraph 1-17d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier In this case, the Board determined that this contention does not warrant an upgrade as there is insufficient evidence to support and upgrade. (2) The applicant contends other Soldiers with similar offenses were not discharged. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the Army has many legitimate avenues available to service members requesting assistance with command issues and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. 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 of all the evidence before the Board, the applicant’s Adjustment Disorder, Unspecified Bipolar Disorder and Depression did not excuse or mitigate the offenses of disobeying an order, committing adultery, making a false official statement, FTRs and violating a no contact order from commander. 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 under the same pretexts, 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 AR20210002987 1