1. Applicant’s Name: a. Application Date: 26 April 2022 b. Date Received: 26 April 2022 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, not being allowed a defense against the charges, was mentally and physically abused, punished and unreasonably jailed. The applicant was not allowed to see both physical and psychological professionals, and medications were taken and thrown away. The applicant’s military records do not reflect War Time Service. The applicant was ordered to terminate the medical evaluation board (MEB), which was in progress, and now has service-related mental and physical disabilities. The disabilities were diagnosed by the doctors in the Army at LSA Anaconda, Landstuhl Regional Medical Center, and Fort Hood. The doctors at the VA in Nashville and Murfreesboro, Tennessee, also diagnosed the applicant with these disabilities. At the time of discharge, the applicant had Traumatic Brain Injury, Post Traumatic Stress Disorder, Anxiety, Major Depression, Attention-Deficit / Hyperactivity Disorder, Learning Disorder, Personality Disorder, a constant sense of dread, and a torn-up shoulder. The applicant did everything to satisfy the command, but nothing seemed good enough. The applicant wrote to Congressmen to ask for assistance, but the command took the applicant’s letter and laughed in the applicant’s, face and the applicant never received a reply. The command began to persecute the applicant publicly, privately, relentlessly, mentally, and psychologically. The command called the applicant a profile rider because they believed the Soldier was lying about being injured. The applicant asked for a court-martial instead of receiving a second Field Grade Article 15, hoping someone in the command would listen. The applicant was not given enough time to speak with an attorney or assemble a defense. The applicant has been seen by the VA on multiply occasions for service-related injuries but was turned away and did not receive any help from them because of the applicant’s discharge. 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 December 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 December 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted at a Summary Court Martial; Soldier assaulted a sentinel; was AWOL; was disrespectful to several noncommissioned officers, and violated Army Regulation 25-1. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 30 October 2008 (5) Administrative Separation Board: On 30 October 2008, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 18 December 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 August 2006 / 3 years b. Age at Enlistment / Education / GT Score: 19 / GED / 111 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21C10, Bridge Crewmember / 2 years, 1 month, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NIF f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Twelve Personnel Action forms, reflect the applicant’s duty status changed as follows: From “PDY” to “AWOL,” effective 6 June 2008; From “AWOL” to “PDY,” effective 30 June 2008; From “PDY” to “AWOL,” effective 22 September 2008; From “AWOL” to “PDY,” effective 23 September 2008; From “PDY” to “AWOL” effective 25 September 2008; From “AWOL” to “PDY,” effective 30 September 2008; From “PDY” to “AWOL,” effective 1 October 2008; From “AWOL” to “PDY,” effective 3 October 2008; From “PDY” to “AWOL,” effective 6 October 2008; From “AWOL” to “PDY,” effective 17 October 2008; From “PDY” to “CMA,” effective 23 October 2008; From “CMA” to “PDY,” effective 16 November 2008. FG Article 15, dated 6 August 2008, for being AWOL (between 6 and 30 June 2008); and, willfully disobeyed a lawful order on or about 16 July 2008. The punishment consisted of a reduction to E-1; forfeiture of $674 pay per month for two months (suspended); and, extra duty and restriction for 45 days. FG Article 15, dated 3 September 2008, for disrespectful language towards SGT G., (20 August 2008); and, willfully disobeyed a lawful order on or about 20 August 2008.The applicant demanded trail by court martial. Military Police Report, dated 22 October 2008, reflects the applicant was apprehended for: Aggravated Assault on a CQ or Sentinel (On Post); Disorderly Conduct (On Post); Damage to Government Property (On Post). Offer to Plead Guilty, dated 29 October 2008, reflects the applicant offered to plead guilty to the charge and specifications stated in the offer to plead guilty, and offered to abide by the other terms and conditions provide the convening authority will refer charges to a Summary Court Martial. Record of Trial by Summary Court-Martial, dated 4 November 2008, reflects the applicant was charged with: Charge I: Violation of UCMJ, Article 128: Specification, on 18 October 2008, assault on SPC H. Plea Guilty and, Finding Guilty. Charge II: Violation of UCMJ, Article 86: Specifications 1, 3,11, 12, 13, 14, 15 and 16, fail to go to at the time prescribed to appointed place of duty. Plea Guilty, Finding Guilty; Specifications 2, 4 and 5, absent without leave. Plea Guilty, Finding guilty; Specifications 6, 7, 8 and 9 dismissed; Specifications 10, without authority go from appointed place of duty. Plea Guilty and, Finding Guilty. Charge III: Violation of UCMJ, Article 91: Specifications 1, 3, 5, 6, 7 and 8, disrespectful in language. Plea Guilty and, Finding Guilty; Specifications 2 and 4, disobeyed a lawful order from an NCO. Plea Guilty and, Finding Guilty. Charge IV: Violation of UCMJ, Article 92: Specification, on or about 14 September 2008, fail to obey a lawful general regulation. Plea Guilty and, Finding Guilty. The sentenced adjudged: Forfeiture $898 and confinement for 30 days. Mental Status Evaluation, dated 18 November 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with a clear thinking process. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 62 days: AWOL, 6 June 2008 – 16 October 2008 / NIF AWOL, 22 September 2008 – 22 September 2008 / NIF AWOL, 25 September 2008 – 29 September 2008 / NIF AWOL, 1 October 2008 – 2 October 2008 / NIF AWOL, 6 October 2008 – 16 October 2008 / NIF CMA, 23 October 2008 – 15 November 2008 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile, dated 22 August 2008, reflects the applicant had the following medical conditions: Depression and severe ADHD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Applicant’s brief; Record of abuse, chapter one through thirteen. 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 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 suffering from Traumatic Brain Injury, Post Traumatic Stress Disorder, Anxiety, Major Depression, Attention-Deficit / Hyperactivity Disorder, Learning Disorder, Personality Disorder. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service depression and severe ADHD. The record shows the applicant underwent a mental status evaluation (MSE) on 18 November 2008, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. The applicant contends not being allowed a defense against the charges, was mentally and physically abused, punished and unreasonably jailed. The applicant contends doing everything to satisfy the command but nothing seemed good enough. The applicant wrote to a Congressmen to ask for assistance, but the command took the applicant’s letter and laughed in the applicant’s face, and the applicant never received a reply. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends War Time Service is not reflected on DD Form 214. The applicant’s requested change to the DD Form 214 does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. The applicant contends the charge sheet was full of trumped up charges. The AMHRR shows on 29 October 2008, the applicant offered to plead guilty to the charge and specification stated in the offer to plead guilty, and offer to abide by the other terms and conditions provided the convening authority referred charges to a Summary Court Martial. The applicant contends being ordered to terminate the medical evaluation board which was in progress, and now has service-related mental and physical disabilities. 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 being seen by the VA on multiple occasions for service related injuries but turned away and did not receive any help from them. 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found potentially-mitigating BH diagnoses of TBI, ADHD, Adjustment Disorder, Depression, Generalized Anxiety Disorder, and PTSD, that may mitigate some or all of the basis for applicant’s separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service BH diagnoses of ADHD, Adjustment Disorder, Depression, Generalized Anxiety Disorder, and service-connection for PTSD, but found the weight of the evidence did not support that TBI existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. After applying liberal consideration, it is the opinion of the Board’s Medical Advisor that the applicant has a partially mitigating diagnosis of PTSD and other BH issues that mitigate applicant’s AWOL and disrespect, as there is a nexus between these conditions and those specific bases for separation, however, assault is not part of the sequela of symptoms associated with any of the applicant’s conditions, including TBI, and therefore is not mitigated. (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 combination of the applicant’s service-connected BH conditions outweighed the assault as an unmitigated basis for applicant’s separation. b. Response to Contention(s): (1) The applicant contends suffering from Traumatic Brain Injury, Post Traumatic Stress Disorder, Anxiety, Major Depression, Attention-Deficit / Hyperactivity Disorder, Learning Disorder and a Personality Disorder. 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 determined that none of the applicant’s contended diagnoses, some medical professionally diagnosed and some applicant assertions only, do not excuse or mitigate the applicant’s assault of a sentinel. (2) The applicant contends not being allowed a defense against the charges, was mentally and physically abused, punished and unreasonably jailed. The Board considered this contention but determined that the applicant assaulted a sentinel, which is a serious offense. The weight of the evidence does not support a Board conclusion that the applicant’s command acted in an arbitrary or capricious manner anytime throughout applicant’s time serving in the military, including throughout the applicant’s discharge process. Among other evidence that supported this conclusion, the Board found the applicant sought legal counsel on 30 October 2008, where the applicant unconditionally waived consideration of the case before an administrative separation board. (3) The applicant contends War Time Service is not reflected on DD Form 214. The Board determined that the applicant’s requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. (4) The applicant contends the charge sheet was full of trumped up charges. The Board considered this contention non-persuasive during its deliberations. The weight of the evidence does not support a conclusion that the applicant’s command acted in an arbitrary or capricious manner anytime throughout the applicant’s time in the military, including throughout the applicant’s discharge process. (5) The applicant contends being ordered to terminate medical evaluation board (MEB) which was in progress and now has service related mental and physical disabilities. The Board determined that when the applicant’s command began pursuing applicant’s misconduct in accordance with the appropriate regulations that state if the command action includes either a punitive or administrative discharge for misconduct the medical process is stopped, the Board found the applicant’s MEB was appropriately suspended, and applicant’s discharge was both proper and equitable. (6) The applicant contends seen by the VA on multiply occasions for service related injuries but turned away and did not receive any help from them. The Board considered this contention but found evidence of multiple successful applicant encounters with the VA, the most recent being two weeks prior to this Board’s deliberations on this case. 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 TBI, ADHD, Adjustment Disorder, Depression, Generalized Anxiety Disorder, and PTSD mitigated the instances of AWOL and disobedience, but did not mitigate the assault on a sentinel, 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 AR20210003159 1