1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the applicant entered active duty on 15 April 2013. The applicant was trained as a Parachute Rigger, successfully completed Airborne Training in 2013, and was assigned to Kaiserslautern, Germany in 2014. The applicant became an asset to the unit and the commander, CPT T.H. described the applicant as a “remarkably hard worker and ambitious Soldier.” The commander added the applicant’s communication and organizational skills made the applicant more reliable than the noncommissioned officer and was the go-to person for personnel actions. The applicant married SGT J.D. on 21 July 2015, but due to Army Regulations regarding relationships between junior enlisted and noncommissioned officers, the applicant received an Article 15, DA Form 2627, dated 12 May 2015. The couple did everything before marrying to avoid adverse impact on the unit. In 2015, the applicant began experiencing difficulty with the NCOs in the chain of command, receiving various negative counseling statements and two Article 15s, to include an Article 15 for stealing $21 worth of beauty products from AAFES, which was out of character. On 31 May 2016, the applicant was notified of the recommendation for separation for pattern of misconduct. At the time of the separation board, the applicant was one month away from the ETS date. It seems the command wanted the applicant to pay the price one more time for the minor incidents which occurred over three years of service. There was a strong difference of opinion between the first commander the applicant served under and the second commander who recommended the under other than honorable conditions. Counsel quoted a board member from the administrative board and the applicant’s attorney, who provided statement in support of the applicant of the applicant. The administrative separation board recommended a general (under honorable conditions) characterization of service. Counsel states by the time the applicant was separated, the applicant completed the first enlisted term of service. The applicant accepted two Article 15s, but the command continued to punish the applicant by lumping other minor things together to blemish honorable service. The applicant was not a criminal, but an excellent Soldier. Counsel contends the issues were more of a personality conflict and failure in leadership. Counsel further described the applicant’s service to include performance as a Better Opportunities for Single Soldiers Representative performance and receiving various awards and decorations. After the discharge, the applicant attained a Bachelor’s Degree in Business Management. The applicant was diagnosed by the VA with depression and anxiety, stemming back from time spent on active duty. The applicant requests an honorable discharge and a narrative reason change. The upgrade would allow the applicant to move on with life and continue to be a productive member of society. In a records review conducted on 3 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: 15 September 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 May 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On 31 March and 2 February 2016, Soldier failed to obey a lawful order. On 24 November 2015, Soldier was disrespectful to a noncommissioned officer. On 6 November 2015, Soldier failed to report at the time prescribed. On 3 May 2015, Solider committed larceny. Between 6 November 2014 and 10 January 2015, Soldier wrongfully engaged in an inappropriate relationship. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 31 May 2016 (5) Administrative Separation Board: On 18 August 2016, the administrative separation board convened and the applicant appeared with counsel. The board recommendation was not provided. The separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 30 August 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 April 2013 / 3 years, 22 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92R10, Parachute Rigger / 3 years, 5 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided: FG Article 15, dated 12 May 2015, for violating a general regulation by wrongfully engaging in an intimate relationship with SGT J.D.M., a noncommissioned officer (between 6 November 2014 and 10 January 2015). The punishment page was not provided. CG Article 15, dated 31 August 2015, for stealing several beauty products and a greeting card, of a value of about $21, the property of Army Air Force Exchange Service (AAFES). The punishment consisted of a reduction to E-2 (suspended) and extra duty and restriction for 14 days. Report of Proceedings by Investigating Officer/Board of Officers, dated 18 August 2016, reflecting the administrative separation board convened on 18 August 2016, but the findings and recommendation sheet was not provided. Five Developmental Counseling Forms, for various acts of misconduct and monthly performance. Department of Veterans Affairs Letter, dated 20 December 2018, reflecting the applicant was rated 50 percent service connected disability for Chronic Adjustment Disorder. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 214 (working copy); DD Form 293; legal brief (7 pages), with enclosures; separation documents; Certificate of Achievement; Bachelor’s Degree; VA letter; three third party statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence reflecting a Bachelor’s Degree in Management Studies and contends being a productive member of society. 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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. RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Pattern of Misconduct,” and the separation code is “JKA.” Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant claims the offenses leading to the discharge were minor. The AMHRR indicates the applicant committed many discrediting offenses. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends being diagnosed by the VA with depression and anxiety, stemming back from time spent on active duty. The applicant provided a letter from VA indicating the applicant was rated 50 percent service-connected disability, but did not reveal the medical condition the rating was contributed. The applicant’s AMHRR contains no documentation of mental health diagnosis. The AMHRR is void of a mental status evaluation. The applicant contends good service. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good performance while in the service. The applicant requests a change in reentry code. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of “3.” There is no basis upon which to grant a change to the reason or the RE code. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant provided evidence reflecting a Bachelor’s Degree in Management Studies and contends being a productive member of society. 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 BH diagnoses of Adjustment Disorder, Panic Disorder w/o Agoraphobia, Mild, and Chronic Adjustment Disorder. Post-service, the applicant is diagnosed with Generalized Anxiety Disorder (GAD). Applicant also contends suffering from Depression in a self-authored statement. These conditions have the potential to mitigate misconduct which results in an involuntary separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service BH diagnoses of Adjustment Disorder and Panic Disorder w/o Agoraphobia, Mild and service-connection for Chronic Adjustment Disorder. Applicant also contends suffering from Depression in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, it is the opinion of the Board’s Medical Advisor that, although the applicant has a BH diagnoses of Adjustment Disorder, Panic Disorder w/o Agoraphobia, Mild, and Chronic Adjustment Disorder, these conditions do not mitigate failure to obey a lawful order, being disrespectful to a noncommissioned officer, failure to report at the time prescribed, committing larceny, and wrongfully engaging in an inappropriate relationship, the misconduct that lead to applicant’s separation because these applicant misconduct are not part of the sequela of applicant’s service-connected BH conditions. (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. The Board also considered the applicant’s assertion of Depression, but determined that the assertion alone was not enough to outweigh the bases for separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board considered this contention but found years of applicant’s minor infractions documented prior to applicant’s discharge and determined that a Pattern of Misconduct narrative reason for separation is proper and equitable. (2) The applicant claims the offenses leading to the discharge were minor. The Board considered this contention and determined that all bases for applicant’s separation are relatively minor, but when aggregated over years, showed a pattern of misconduct that warranted the applicant’s discharge as both proper and equitable. (3) The applicant contends being diagnosed by the VA with depression and anxiety, stemming back from time on active duty. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board considered the applicant’s assertion of depression, however the Board determined that there is no evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertion alone did not outweigh the basis of separation due to the severity of the offenses. The applicant’s GAD diagnoses was made post-service, and was not service-connected by the VA. The Board determined that there is no evidence of said diagnoses existing in-service and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim that the condition existed in and affected behavior in-service, and therefore the Board applied the appropriate weight to this contention during its deliberations. (4) The applicant contends good service. 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 applicant’s failure to obey a lawful order, being disrespectful to a noncommissioned officer, failure to report at the time prescribed, committing larceny, and wrongfully engaging in an inappropriate relationship, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) The applicant requests a change in reentry code. The Board determined that no change to re-entry code is warranted. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. (6) The applicant provided evidence reflecting a Bachelor’s Degree in Management Studies and contends being a productive member of society. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board determined that the applicant’s post-service accomplishments did not warrant any change to the applicant’s discharge. 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, Panic Disorder w/o Agoraphobia, Mild, and Chronic Adjustment Disorder diagnoses and asserted Depression did not mitigate the offenses of failure to obey a lawful order, being disrespectful to a noncommissioned officer, failure to report at the time prescribed, committing larceny, and wrongfully engaging in an inappropriate relationship, 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 AR20210003146 1