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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant suffered from mental health issues. In a records review conducted on 14 April 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 18 April 2011 c. Separation Facts: The AMHRR is void of the separation packet, however the applicant provided a copy of the separation packet. (1) Date of Notification of Intent to Separate: 13 January 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted of one count of conspiracy to commit rape in the first degree, burglary in the first degree, and assault in the second degree by Pierce County Superior Court, crimes which if tried by General Court-Martial, would have had a maximum potential sentence which included more than one-year confinement and a punitive discharge. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 13 January 2011, the applicant waived legal counsel. (5) Administrative Separation Board: On 13 January 2011, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 1 April 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 March 2007 / 6 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92G10, Food Service Operations / 12 years, 3 months, 25 days d. Prior Service / Characterizations: RA, 21 March 1997 - 25 March 1999 / HD RA, 26 March 1999 - 12 June 2001 / HD RA, 13 June 2001 - 22 August 2005 / HD RA, 23 August 2005 - 14 March 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (27 June 2006 - 15 June 2007) f. Awards and Decorations: ARCOM-2, AAM-5, AGCM-4, NDSM, GWOTSM, ICM-CS, NCOPDR, ASR, OSR-4 / The applicant's AMHRR reflects award of the KDSM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 April 2007 - 31 March 2008 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Personnel Action form, reflects the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)" effective 16 July 2009. Superior Court of the State of Washington in and for the County of Pierce Court Order, dated 12 July 2010, reflects the applicant was found guilty of offenses qualifying for community placement. Superior Court of the State of Washington in and for the County of Pierce Court Order, dated 12 July 2010, reflects the applicant was ordered 120 months in confinement. i. Lost Time / Mode of Return: 1 year, 9 months, 2 days (CCA, 16 July 2009 - 18 April 2011) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided the following: Western State Hospital Psychiatric Assessment and medical documents, indicating the applicant was diagnosed with Axis I: Affective psychosis, not otherwise specified; Axis II: Deferred; Axis III: Deferred; Axis IV: Moderate - serious legal charges and some mental illness; Axis V: Current GAF 40. Forensic Psychological Report, dated 10 October 2009, indicating the applicant was diagnosed with Axis I: Major Depression, with Psychotic Features, History of Dysthymic Disorder, Rule out Alcohol Abuse; Axis II: Deferred; and Axis III: None identified in chart. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Western State Hospital Psychiatric Assessment and medical documents; Forensic Psychological Report; Department of Mental Health Appraisal; separation packet. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. At the time of the applicant's discharge, the applicant had been confined by civilian authorities for 1 year, 9 months and 2 days. The applicant had been sentenced to 120 months. The applicant contends suffering from mental health issues. The applicant provided several medical documents from Western State Hospital indicating the applicant was diagnosed with Axis I: Affective psychosis, not otherwise specified; Axis II: Deferred; Axis III: Deferred; Axis IV: Moderate - serious legal charges and some mental illness; Axis V: Current GAF 40; the applicant was also diagnosed from Forensic Psychological Report with Axis I: Major Depression, with Psychotic Features, History of Dysthymic Disorder, Rule out Alcohol Abuse; Axis II: Deferred; and Axis III: None identified in chart. The AMHRR does not contain a Mental Status Evaluation (MSE). 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. Applicant has a diagnosis of Schizoaffective Disorder and this BH condition could mitigate the basis for applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant has a diagnosis of Schizoaffective Disorder and there is evidence to support that the condition existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor determined that the medical condition does not mitigate the basis of separation. The Board's Medical Advisor opined that the applicant has a diagnosis of Schizoaffective Disorder, which is a psychotic disorder characterized as a severe mental illness that causes those who suffer from it to be out of touch with reality when experiencing severe symptoms. As such, this is a mitigating BH condition and there is evidence that the applicant was experiencing this condition at the time of military service. The extent to which applicant's Schizoaffective Disorder may have been associated with the crime and subsequent civil conviction that led to the separation from the Army is unable to be determined given that no details regarding the incident other than the resulting charges are available for review. However, the severity of the legal charges and lengthy criminal conviction suggest that the basis for separation would outweigh any medical mitigation. (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 outweighed the basis for applicant's separation. a. The applicant contends suffering from mental health issues. The Board considered the applicant's diagnosis of Schizoaffective Disorder and evidence to support that the condition existed during military service. A review of the applicant's medical documentation revealed a diagnosis of a psychiatric history to include a prior psychiatric hospitalization in 2003. Additionally, the Board considered the applicant's length, quality of service, and prior period of honorable service during the proceedings. b. 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 that the discharge was improper or inequitable. c. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's Schizoaffective Disorder did not outweigh the offenses of conspiracy to commit rape in the first degree, burglary in the first degree, and assault in the second degree. 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 AR20210003035 1