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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, since leaving the Army, PTSD has taken a toll on him. His life has changed drastically living with PTSD and has tried to work different jobs which he thought he could manage, but he cannot control the mood swings and anxiety attacks from time to time. This affects him being able to take care and provide for his three kids. He has other medical conditions which he needs help with, but with his current discharge, he can only be seen for PTSD. The applicant states an upgrade will allow him to get all of his disabilities properly treated. Living with PTSD and the symptoms, affect him every day and especially at night. He has sleepless nights, constant ringing of alarms, nightmares, mood swings, loss of appetite, hallucinations almost every night. He would not wish this on anyone even the enemy. He looks forward to being able to be cared for by the country he fought and risked his life to defend. In a records review conducted on 17 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 31 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: For being convicted by a civil court, demonstrating a pattern of misconduct and for the committing a serious offense. On or about 9 September 2010, the applicant pled nolo contender to one count of family violence battery and was convicted in the State Court of Richmond County, State of Georgia, for intentionally causing visible bodily harm to Ms. S. R. U., when he choked her until she lost consciousness. He was sentenced to 10 days of confinement in a civilian facility, 11 months and 20 days of probation and $675 in fines. The applicant knew of a lawful order issued by CPT D. F., to wit: to comply with the 35th ITSB Motorcycle Safety Handbook, an order it was his duty to obey, and did, at near Columbia, South Carolina, on or about 8 March 2009, fail to obey the same by wrongfully operating a motorcycle without updating his motorcycle packet. This was in violation of Article 92, UCMJ. He received a company grade Article 15 for this offense. The applicant, at or near Camp Victory, Iraq, between on or about 1 September 2009 and 1 April 2010, was found in the CHU of SPC T. D., a woman not his wife, under the covers of her bed. This conduct was prejudicial to good order and discipline and was in violation of Article 134, UCMJ. He received a company grade Article 15 for this offense. The applicant did, at Camp Victory, Iraq, on or about 25 March 2010, violate a lawful general regulation, to wit: AR 600-20, paragraph 4-14, by wrongfully having an inappropriate relationship with SPC L. S. This is in violation of Article 92, UCMJ. He received a field grade Article 15 for this offense. The applicant did, at or near Camp Victory, Iraq, on or about 25 March 2010, wrongfully have sexual intercourse with SPC L. S., a married woman not his wife. This is a violation of Article 134, UCMJ. He received a field grade Article 15 for this offense. The applicant did, receive a lawful command from 1LT W. B., his superior commissioned officer, then known by him to be his superior commissioned officer, to have no contact with SPC L. S., and he did, at or near Camp Victory, Iraq, on or about 25 March 2010, willfully disobey the same. This is a violation of Article 90, UCMJ. He received a field grade Article 15 for this offense. The applicant did, on or about 27 May 2008, wrongfully appropriate 1 2000 Suzuki GXS600 motorcycle, of a value of about $2,000 the proper of SPC J. P. This is a violation of Article 121, UCMJ. He received a company grade Article 15 for this offense. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 1 March 2011 (5) Administrative Separation Board: On 1 March 2011, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 1 March 2011, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 30 March 2011, the applicant's conditional waiver was denied. On 31 March 2011, the applicant was notified to appear before an administrative separation board and advised of rights. On 29 April 2011, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 12 May 2011, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 12 May 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2007 / 5 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92A10, Automated Logistical Specialist / 7 years, 2 months, 24 days d. Prior Service / Characterizations: RA, 19 February 2004 - 27 April 2006 / HD RA, 28 April 2006 - 1 March 2007 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (20 October 2006 - 14 January 2008 and 20 August 2009 - 16 July 2011) f. Awards and Decorations: ACM, AAM-3, AGCM, NDSM, GWOTSM, KDSM, ICM-2CS, ASR, OSR g. Performance Ratings: 1 March 2007 - 29 February 2008 / Among the Best 1 March 2008 - 28 February 2009 / Fully Capable 28 February 2009 - 27 February 2010 / Among the Best 28 February 2010 - 31 March 2010 / Marginal h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation, dated 20 May 2009, reflects the applicant was the subject of an investigation for larceny of private property. CG Article 15, dated 1 July 2009, for disobeying a lawful order for failing to update his motorcycle packet on or about 8 March 2009; and, wrongfully appropriating a motorcycle, of a value of about $2,000, the property of SPC J. P. on or about 27 May 2008. The punishment consisted of forfeiture of $300 pay; extra duty for 14 days and an oral reprimand. Family Violence Incident Report, dated 9 September 2010, reflects the applicant was charged with battery against Ms. S. R. U., the mother of his two children. FG Article 15, dated 25 March 2010, for violating a lawful general regulation, to wit: paragraph 4-14 Army Regulation 600-20 dated 18 March 2008, by wrongfully having an inappropriate relationship with SPC L. S., on or about 25 March 2010; wrongfully having sexual intercourse with SPC L. S., a married woman not his wife on or about 25 March 2010; and for disobeying a lawful command from 1LT W. E. B., to have no contact with SPC L. S. on or about 25 March 2010, willfully disobey the same. The punishment consisted of a reduction to E-4; forfeiture of $500 pay per month for two months (suspended); and, extra duty for 45 days. CG Article 15, dated 18 June 2010, for being found in the CHU of SPC T. D., a woman not his wife under her covers in her bed, which conduct was prejudicial to good order and discipline on or about 1 September 2009 and 1 April 2010. The punishment consisted of a reduction to E-3; forfeiture of $448 pay for one month (suspended). Report of Mental Status Evaluation, dated 14 September 2010, reflects the applicant met retention standards prescribed in AR 40-501, and there were no psychiatric disease or defect which warrant disposition through medical channels. The applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. State Court of Richmond County State of Georgia document, dated 17 September 2010, reflects the applicant pled Nolo Contendre on Count 1, his sentence was ten days confinement and the remainder of 11 months, 20 days to be served on probation. Record of Supplementary Action Under Article 15, UCMJ, dated 20 September 2010, reflects the suspended portion of the punishment imposed on 18 June 2010, was vacated for: Article 128, unlawfully choking S. R. U. until she fainted. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty" to "Civilian Confinement," effective 25 March 2011; From "Civilian Confinement" to "Present for Duty," effective 4 April 2011; and From "Present for Duty," to "Confinement," effective 23 May 2011. Report of Proceedings by Investigating Officer/Board of Officers, dated 29 April 2011, reflects the investigating officer found: There was a preponderance of the evidence to support a finding the applicant was convicted by a civil court under the provisions of AR 635-200, paragraph 14-5. Per Chapter 1 Section II, findings do warrant separation; there was a preponderance of evidence to support a finding the applicant has engaged in a pattern of misconduct under the provisions of AR 635-200, paragraph 14-12b. Per Chapter I Section II, findings do warrant separation; and there was a preponderance of evidence to support the finding the applicant committed a serious offense under the provisions of AR 635-200, paragraph 14-12c. Per Chapter 1. Section, Section II findings do warrant separation. i. Lost Time / Mode of Return: 18 days Civilian Confinement, 25 March 2011 - 4 April 2011 / Released from Confinement Civilian Confinement, 23 May 2011 - 31 May 2001 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of a VA letter and his VA rating decision which reflects he was granted service connection for treatment purposes only under 38 U.S.C. chapter 17 for post-traumatic stress disorder also claimed as depressive disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; VA letter; VA rating decision; DD Form 214. 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. (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 "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 he was diagnosed with service connected post-traumatic stress disorder also claimed as depressive disorder by the VA. The applicant provided a letter from VA and his VA rating decision indicating he was diagnosed with service connected post-traumatic stress disorder also claimed as depressive disorder. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 14 September 2010, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends an upgrade of the discharge would allow veterans benefits. 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. The applicant contends good service, including a combat tour. 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 and service connected for treatment purposes by the VA with combat-related PTSD and Major Depressive 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 applicant was diagnosed and service connected for treatment purposes by the VA with combat-related PTSD and Major Depressive Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration of all the evidence and there is no association between applicant's PTSD or Major Depressive Disorder and the misconduct that led to applicant's separation. Neither BH condition impacts one's ability to distinguish between right and wrong nor are the conditions associated with being convicted by a civil court for domestic abuse, demonstrating a pattern of misconduct for disobeying orders, having an inappropriate relationship with a married Soldier and being found in bed with a married Soldier, and for wrongfully appropriating a motorcycle. (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 applicant's diagnosed PTSD and Major Depressive Disorder do not outweigh the civil court conviction for domestic abuse, misconduct of disobeying orders, having an inappropriate relationship, wrongfully appropriating a motorcycle and domestic violence, all of which led to the applicant's separation. b. Response to Contention(s): (1) The applicant contends being diagnosed with service connected post-traumatic stress disorder and claims a depressive disorder by the VA. The Board liberally considered these contentions of applicant disorders but during its deliberation concluded that applicant's BH conditions did not outweigh the discharge due to the seriousness of the multiple acts of misconduct that led to applicant's separation. (2) The applicant contends an upgrade of the discharge would allow veterans benefits. 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. (3) The applicant contends good service, including a combat tour. The Board considered this contention and concluded 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 civil conviction for domestic abuse, misconduct of disobeying orders, having an inappropriate relationship, and wrongfully appropriating a motorcycle, 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 diagnoses of combat-related PTSD and Major Depressive Disorder did not outweigh the civil conviction for domestic abuse, offenses of disobeying orders, having an inappropriate relationship, wrongfully appropriating a motorcycle, nor did the weight of the evidence support a Board conclusion that the discharge was either improper or inequitable. 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 AR20210003190 1