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, suffering from Major Depression Disorder, in addition to being young and immature. The applicant believes being incapable of acting rationally due to age and mental condition, and therefore, should have received a medical discharge. In a records review conducted on 29 March 2022, and by a 5-0 vote, the Board denied the request because, despite applying liberal consideration, the applicant's Adjustment Disorder, and asserted MDD, did not mitigate the offenses of disrespect, disobedience, and assault, and all other aspects of applicant's discharge were 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, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 26 August 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 August 2011 (2) Basis for Separation: The applicant was informed of the following reasons: On 11 May 2011, the applicant disrespected CPT T.S.Z., a superior commissioned officer, by rolling eyes and stating, "This is fucking bullshit", or words to that effect, and contemptuously turning from and leaving while CPT T.S.Z. was speaking to the applicant. That when the applicant received a lawful command from CPT T.S.Z., a superior commissioned officer, to "come back here", or words to that effect, the applicant did, willfully disobeyed the same. On 17 May 2011, without authority, the applicant failed to go at the time prescribed to appointed place of duty, to wit: 0930 Battalion formation located next to the Battalion Headquarters. On 5 June 2011, the applicant unlawfully choked PVT D.S.A-K. with the applicant's arms. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 16 August 2011, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization:19 August 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 July 2010 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A10, Human Resources Specialist / 1 year, 1 month, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Counseling statements for being disrespectful towards a superior commissioned officer on several occasions; Article 15 proceedings being initiated; failed to go to appointed place of duty at the prescribed time on several occasions; assaulting a female Soldier; involuntary separation being initiated; and malingering. FG Article 15, dated 22 June 2011, for failing to go to appointed place of duty at the prescribed time on 17 May 2011; behaving with disrespect towards CPT T.S.Z., a superior commissioned officer, on 11 May 2011; disobeying CPT T.S.Z., a superior commissioned officer on 11 May 2011; and unlawfully choking PVT D.S.A-K., with the applicant's arms on 5 June 2011. The punishment consisted of reduction to E-1, forfeiture of $733 pay per month for two months (suspended), 45 days of extra duty and restriction, and an oral reprimand. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 24 June 2011, indicates a diagnosis of Adjustment Disorder with anxious and depressed mood; chronic, and reflects the applicant could understand and participate in administrative proceedings, appreciated the difference between right and wrong, and met retention requirements (i.e. did not qualify for a Medical Evaluation Board). Report of medical history, dated 12 July 2011, indicates the applicant sought behavioral health care, and self-reported experiencing depression. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; articles on behavioral health; third party letter; medical records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states being gainfully employed, married, and successfully raising five children. 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 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. The applicant contends the discharge should have been for medical reasons. 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. The applicant contends suffering from Major Depression Disorder, and was incapable of operating at full mental capacity at the time of discharge. The Mental Status Evaluation (MSE) contained in the AMHRR indicates a diagnosis of Adjustment Disorder with anxious and depressed mood; chronic. The MSE was considered by the separation authority. The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The third party statement provided with the application speak highly of the applicant. It recognizes the applicant's good character. The applicant contends being gainfully employed, married, and successfully raising five kids. 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 that applicant has an in-service BH diagnosis of Adjustment Disorder and is 30% service- connected for Chronic Adjustment Disorder along with applicant's assertion that applicant suffers from MDD, all of these BH conditions 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 applicant has an in-service BH diagnosis of Adjustment Disorder and is 30% service-connected for Chronic Adjustment Disorder and applicant contends suffering from MDD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After reviewing the available information and in accordance liberal consideration, it is the opinion of the Board's Medical Advisor that applicant's Adjustment Disorder nor MDD, do not mitigate the applicant's basis for separation misconduct of disrespect, disobeying an order, and assault because these wrongful applicant actions are not part of the sequela of symptoms associated with Adjustment Disorder or MDD. (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. b. Response to Contention(s): (1) The applicant contends the discharge should have been for medical reasons. The MSE cleared the applicant for administrative separation, indicating the applicant did not require a medical discharge, and the Board's Medical Advisor could not find any support for applicant's contention. (2) The applicant contends suffering from Major Depression Disorder, and was incapable of operating at full mental capacity at the time of discharge. The Board liberally considered this contention and the applicant's assertion of MDD, however the Board determined that applicant's wrongful conduct, that was the basis for applicant's separation, is not mitigated by MDD, and the weight of the evidence, including applicant's MSE, completed just 2 days prior to discharge, supported a conclusion that there were no BH or mental capacity issues at the time of applicant's discharge. (3) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention but concluded that due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, including the severity and frequency of the applicant's documented offenses, youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. (4) The third party statement provided with the application speak highly of the applicant. The Board considered these statements during deliberations. (5) The applicant contends being gainfully employed, married, and successfully raising five kids. The applicant's post-service accomplishments and family stability were noted and considered during proceedings. 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 applicant's Adjustment Disorder, and MDD, did not mitigate the offenses of disrespect, disobedience, 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 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 AR20210003092 1