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, at the time of separation he was going through the Integrated Disability Evaluation System (IDES) process and his command did not support him in completing the process or let him finish the process of Qualitative Management Program (QMP) which he was already selected. The applicant had several disabilities, including Post- Traumatic Stress Disorder (PTSD) and because his medical disabilities were service connected, he received 100 percent rating from the Department of Veterans Affairs, 70 percent for combat related PTSD. The applicant served in the Army for over 13 years and was very successful in his career and earned the rank of Sergeant First Class because of good performance and hard work on every position assigned during his career, including recruiting duty. The applicant received a letter of reprimand for something he was clearly found not guilty. After receiving the letter of reprimand, the applicant received an Article 15 because he reported to duty late after being on leave visiting his daughters in Alaska in the month of February. The flights were delayed due to bad weather. The applicant communicated with his supervisor and requested a leave extension. The applicant's command did not hear his version and did not approve his request for a leave extension. Shortly after the applicant's separation process began, his Company Commander was relieved from duty because he lied about supporting the junior enlisted Soldiers on their request for Basic Allowance for Subsistence (BAS) because of their working shifts. This clearly shows the lack of support the Soldiers had within the organization. The applicant's side of the story was never heard by the command and the applicant was always being treated as guilty. The applicant was found not guilty of the allegations and the command issued him a letter of reprimand in order to stop his career. The applicant's supervisors, a CW4 and a MSG, were committing illegal acts by using government facilities and civilian employees for their personal use during working hours. The applicant reported the offenses and made an IG complaint, but nothing ever happened to them. They both submitted their retirement paperwork and were out of the organization very quickly, during the ongoing investigation. The applicant's discharge was very unfair, especially because all his disabilities were in his record and he received his award from the Department of Veterans Affairs. The applicant worked very hard until the last day of his service in the Army, even though he had limitations because of his disabilities and was always on medication to control his severe PTSD and other disabilities. In a records review conducted on 24 February 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: 25 October 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 May 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant falsified an official document on 14 January 2016; was absent from his unit on 20 February 2016; he lied to a commissioned officer on two occasions, 24 February and 1 March 2016; and, he inappropriately and unlawfully touched a woman without her consent on 22 May 2015. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 24 May 2016 (5) Administrative Separation Board: The chain of command initially recommended under other than honorable conditions. The applicant's chain of command indicated the applicant conditionally waived appearance before an administrative board contingent upon receiving a general (under honorable conditions) and after considering the medical evaluation board proceedings and the separation packet, to include the conditional waiver, recommended approval of the conditional waiver with a general (under honorable conditions). The applicant's conditional waiver is not in the file. (6) Separation Decision Date / Characterization: 12 October 2016 / General (Under Honorable Conditions) / The separation authority indicated he reviewed the medical evaluation board proceedings and the administrative separation proceedings pertaining to the applicant and found the Soldier's physical condition was not a direct or substantial contributing cause of the conduct that led to the recommendation for elimination and that the circumstances in the Soldier's case did not warrant processing under the physical disability system. The applicant's conditional waiver was approved. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 June 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 30 / 2 Years College / 95 c. Highest Grade Achieved / MOS / Total Service: E-7 / 91X40, Maintenance Supervisor / 16 years, 8 days d. Prior Service / Characterizations: ARNG,18 October 2000 - 9 January 2006 / HD IADT, 8 August 2001 - 30 January 2002 / UNC (Concurrent Service) AD, 21 February 2003 - 19 July 2004 / HD (Concurrent Service) AD, 15 March 2005 - 18 November 2005 / HD (Current Service) RA, 10 January 2006 - 2 May 2007 / HD RA, 3 May 2007 - 11 October 2011 / HD RA, 12 October 2011 - 12 June 2014 / HD e. Overseas Service / Combat Service: Alaska, Germany, Hawaii, Puerto Rico, SWA / Iraq (2 May 2005 - 2 November 2005; 24 July 2006 - 25 September 2007) f. Awards and Decorations: ICM-3CS, ARCOM-4, AAM, MUC, AGCM-3, ARCAM, NDSM, GWOTSM, NCOPDR-3, ASR, OSR-6, AFRMMD, CAB g. Performance Ratings: 9 February 2014 - 30 October 2014 / Among the Best 31 October 2014 - 9 December 2015 / Fully Capable 10 December 2015 - 25 October 2016 / Met Standard h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report - Final, dated 6 November 2015, reflects the applicant was under investigation for Abusive Sexual Contact (Adult) under Article 120, UCMJ, and Assault Consummated by Battery under Article 128, UCMJ. The charge of sexual conduct was determined to have insufficient evidence. The charge of assault consummated by battery was determined to be founded. General Officer Memorandum of Reprimand, dated 17 December 2015, reflects the applicant was reprimanded for assaulting a woman at his residence. On 23 May 2015, while he was intoxicated, the applicant inappropriately touched a woman, not his wife, against her will, by rubbing the back of her arm, brushing her breast with the back of his hand, and by repeatedly placing his hand on her inner thigh. Furthermore, the applicant touched the tattoo on her back and kissed her hand. The applicant initially elected to submit a statement, but after consulting with legal assistance, he no longer wished to submit statements in rebuttal. Memorandum for Record, subject: Commander's Inquiry Findings and Recommendations, dated 1 March 2016, reflects the applicant's immediate commander conducted a commander's inquiry regarding the applicant's failure to report back in on 19 February 2016, his last day of leave, and concluded beyond a reasonable doubt the applicant was absent without leave and made false official statements, while misusing government property. FG Article 15, dated 31 March 2016, for signing a false official record, to wit: DA Form 31 Request and Authority for Leave, which record was false in that his leave address was Alaska (14 January 2016); being absent from his unit (from 20 to 23 February 2016); and, on two occasions, making false official statements to a commissioned officer (24 February 2016; 1 March 2016). The punishment consisted of forfeiture of $2,089 pay per month for two months. Report of Mental Status Evaluation, dated 21 April 2016, reflects the applicant could understand and participate in administrative proceedings. The applicant was screened for PTSD and mild TBI with negative results. There was no diagnosis indicated. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a VA letter, dated 23 January 2017, reflecting the applicant was rated 70 percent disability for PTSD with adjustment disorder, mixed anxiety, insomnia and depressed mood (also claimed as mood irritable, and night sweats). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; VA letter; third party statement. 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. (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 he suffered from PTSD and other disabilities. The applicant provided VA documents indicating he was rated 70 percent disability for PTSD with adjustment disorder, mixed anxiety, insomnia and depressed mood (also claimed as mood irritable, and night sweats). The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 21 April 2016, reflecting the applicant could understand and participate in administrative proceedings. The applicant was screened for PTSD and mild TBI with negative results. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends the command did not support him completing the IDES or QMP process and he was unfairly given a letter a reprimand and an Article 15. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. The applicant contends his supervisors, a CW4 and a MSG, were committing illegal acts but were allowed to retire, although he reported the offenses to IG. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends good service, to include two combat tours. The third party statement provided with the application speaks highly of the applicant. The Board considered the service accomplishments and the quality of service 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 and found the applicant was diagnosed in service with Adjustment Disorder, Unspecified Disorder, Major Depressive Disorder, and diagnosed and service connected post service with PTSD 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 was diagnosed in service with Adjustment Disorder, Unspecified Disorder, Major Depressive Disorder and service connected post service with PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. After applying liberal consideration, the Board's Medical Advisor opined that only the AWOL basis for separation is mitigated by the applicant's PTSD, but there is no association between any of applicant's BH conditions and the other misconduct of falsifying records, lying to an officer, and inappropriate touching 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 applicant's BH conditions do not outweigh the unmitigated basis for discharge. b. Response to Contention(s): (1) The applicant contends suffering from PTSD and other disabilities. The Board liberally considered the applicant's DOD and VA health records and determined the applicant's multiple BH conditions, including PTSD only mitigated applicant's being absent from applicant's unit, not the misconduct of falsifying an official document, lying to a commissioned officer on two occasions, and inappropriately and unlawfully touching a woman without her consent, which are the unmitigated basis of applicant's separation. (2) The applicant contends the command did not support him completing the IDES or QMP process and was unfairly given a letter of reprimand and an Article 15. The Board considered this contention during its deliberations but determined that the applicant's contention did not outweigh the presumption of government regularity regarding applicant's IDES and QMP processes. Further, the separation file in the AMHRR indicates that the applicant consulted with legal counsel, and the Board determined the command did not act in an arbitrary or capricious manner. (3) The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Board considered this contention but determined that the applicant's contention did not outweigh the presumption of government regularity regarding applicant's medical review process. Further, the separation file in the AMHRR indicates that the applicant consulted with legal counsel, and the Board determined the command did not act in an arbitrary or capricious manner. (4) The applicant contends supervisors, a CW4 and a MSG, were committing illegal acts but were allowed to retire, although the offenses were reported to IG. The Board considered this contention, but determined that the applicant's contention did not outweigh the presumption of government regularity regarding applicant's IG process. Further, the separation file in the AMHRR indicates that the applicant consulted with legal counsel, and the Board determined the command did not act in an arbitrary or capricious manner. (5) The applicant contends good service, to include 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 misconduct of falsifying an official document, lying to a commissioned officer and inappropriately touching a female, 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 conditions of PTSD, Adjustment Disorder, Unspecified Disorder, and Major Depressive Disorder did not outweigh the offenses of falsifying an official document, lying to a commissioned officer and inappropriately touching a female, nor were there any other inequities or improprieties to warrant any change to applicant's discharge. 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 AR20210003144 1