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, applicant was diagnosed with PTSD while still in the military and subsequently discharged from the Army without the benefit of receiving any treatment for PTSD. Applicant was busted down from E-4 to E-1 due to behavior directly related to applicant’s PTSD, but no one in applicant’s unit recognized applicant was struggling. No one thought to send applicant for a behavioral health evaluation before sending applicant back to the U.S. from Iraq. The applicant believes the Army failed the applicant which ultimately affected the character of applicant’s discharge in a negative way. Applicant’s character of discharge has kept applicant from getting services in the community which other honorably discharged veterans receive. In a records review conducted on 1 March 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 (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 August 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 June 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On 6 June 2006, the applicant violated paragraph 2(c) General Order Number 1, Multi-National Division- Baghdad, by consuming alcohol, in violation of Article 92, UCMJ; On 6 June 2006, the applicant wrongfully distributed one tablet of Zolpidem, a Schedule IV Controlled Substance, in violation of Article 112a, UCMJ; On 6 June 2006, the applicant committed sodomy with PFC D. C. A., in violation of Article 125, UCMJ; On 6 June 2006, the applicant committed adultery by wrongfully having sexual intercourse with PFC D. C. A., a woman not applicant’s wife, in violation of Article 134, UCMJ; On 6 June 2006, the applicant committed an indecent act with SPC D. R. D., PFC D. C. A and SPC J. J. C. by collectively engaging in sexual intercourse with PFC D. C. A., in violation of Article 134, UCMJ; and On 15 June 2006, the applicant communicated a threat to SSG C. L. C. by stating to him, “I am going to shoot SFC J. J. D. in his sleep” or words to that effect, in violation of Article 134, UCMJ. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 19 June 2006, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 June 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 September 2004 / 4 years b. Age at Enlistment / Education / GT Score: 20 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10 2B, Indirect Fire Infantry / 4 years, 5 months, 13 days d. Prior Service / Characterizations: RA, 6 March 2002 – 12 September 2004 / HD e. Overseas Service / Combat Service: SWA / Kuwait-Iraq (1 March 2003 – 1 February 2004 and 26 November 2005 – 27 July 2006) f. Awards and Decorations: ARCOM, AGCM, NDSM, ICM, GWOTEM, GWOTSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 19 June 2006, for violating a lawful General order, to wit: Paragraph 2(c) General Order Number 1, Multi-National Division-Baghdad, dated 13 May 2007, by wrongfully consuming alcohol, in violation of Article 92, UCMJ; on 6 June 2006, wrongfully distributing one tablet of Zolpidem, a scheduled IV controlled substance, in violation of Article 112a, UCMJ; on 6 June 2006, committing sodomy with PFC D. C. A., in violation of Article 125, UCMJ; on 6 June 2006, committing adultery by wrongfully having sexual intercourse with PFC D. C. A., a woman not applicant’s wife, in violation of Article 134, UCMJ; on 6 June 2006, committed an indecent act with SPC D. R. D., PFC D. D. A., and SPC J. J. C., by collectively engaging in sexual intercourse and sodomy with PFC D. C. A., in violation of Article 134, UCMJ; and on 15 June 2006, wrongfully communicate to SSG C. L. C. a threat, to wit: “I am going to shoot SFC J. J. D. in his sleep,” or words to that effect, in violation of Article 134, UCMJ. The punishment consisted of a reduction to E-1; forfeiture of $636 pay per month for two months; and, extra duty and restriction for 45 days upon return to Fort Campbell, KY. 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 18 July 2006, reflects the applicant could understand the difference between right and wrong and could participate in the proceedings and was mentally responsible. The applicant was diagnosed with: Acute Post Traumatic Stress Disorder. Report of Medical Examination, undated, the examining medical physician diagnosed the applicant with anxiety (depression)/insomnia. Chronological Record of Medical Care, dated 24 July 2006, reflects the applicant was being treated for Acute PTSD, Major Depression Recurrent Moderate and Adjustment Disorder with emotions and conduct. The applicant provided Medical Records, dated 13 April, 17 July and 24 September 2018, which reflects the applicant was being treated for PTSD chronic. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA Letter; copy of email requesting medical documentation; medical records. 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 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 suffering from PTSD and was diagnosed while still in the military. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service Acute PTSD. The record shows the applicant underwent a mental status evaluation (MSE) on 18 July 2006, which indicates the applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The MSE was considered by the separation authority. The applicant contends applicant’s behavior was due to applicant’s untreated PTSD and no one in applicant’s unit recognized applicant was struggling. Applicant was not sent to behavioral health before being sent back to the U. S. from Iraq. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the character of applicant’s discharge has kept applicant from getting veteran services which other honorably discharged veterans receive. Eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 and found the applicant was diagnosed with PTSD, Adjustment Disorder, Major Depression, and Nightmare Disorder that could mitigate applicant’s basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found the applicant has an in-service BH diagnoses of PTSD, Adjustment Disorder, and Major Depression. Applicant also has a post-service BH diagnosis of Nightmare Disorder that is service-connected. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board’s Medical Advisor, after applying liberal consideration, opined that applicant’s PTSD only partially mitigates applicant’s misconduct of alcohol use because substance use behavior is part of the sequela of symptoms associated with PTSD. However, wrongfully distributing one tablet of a Schedule IV Controlled medication, Adultery, other various sexual acts, and communicating a serious threat to shoot a Soldier in their sleep, are not mitigated by applicant’s PTSD and other BH diagnoses because there is no nexus between these wrongful acts and applicant’s BH diagnoses. (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 applicant’s wrongfully distributing one tablet of a Schedule IV Controlled medication, Adultery, other various sexual acts, and communicating a serious threat to shoot a Soldier in their sleep, the medically unmitigated basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD and was diagnosed while still in the military. The applicant’s records support a diagnosis of in-service Acute PTSD. The record shows the applicant underwent a mental status evaluation (MSE) on 18 July 2006, which indicates the applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. In this case, the Board, after applying liberal consideration, determined that the available evidence did not support a conclusion that any of the applicant’s medical conditions outweighed the medically unmitigated basis for applicant’s separation. (2) The applicant contends applicant’s behavior was due to applicant’s untreated PTSD and no one in applicant’s unit recognized applicant was struggling. Applicant was not sent to behavioral health before being sent back to the U. S. from Iraq. The Board, after applying liberal consideration, determined that the Army has many legitimate avenues available to service members requesting assistance with unit issues, but the weight of the evidence does not support a conclusion that such assistance was pursued nor that there was any arbitrary or capricious actions by the command, and therefore concluded that this contention does not warrant any change to the discharge. (3) The applicant contends the character of applicant’s discharge has kept applicant from getting veteran services which other honorably discharged veterans receive. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post- 9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 PTSD, Adjustment Disorder, Major Depression, and Nightmare Disorder did not mitigate or outweigh the offenses of wrongfully distributing one tablet of a Schedule IV Controlled medication, Adultery, other various sexual acts, and communicating a serious threat to shoot a Soldier in their sleep that are the medically unmitigated basis for applicant’s separation, 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, 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 AR20210003128 1