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, the behavioral health team had many meetings with Echo 3-4 Command, and repeatedly asked to have the applicant medically discharged due to service related behavioral health issues and other physical injuries which was unfit for duty. The command denied separation for those reasons even though the VA determined 100 percent disabled due to service related injuries. The command also stated the applicant should have been discharged for conduct issues and would not take medical into consideration. The applicant states, he met with the commander several times regarding what the behavioral health team had spoken to her about, but CPT. K. would not be receptive to anything the doctors requested; including having the applicant work excess hours which did not coincide with the Profile he had been placed on through Womack. The applicant believes because of the injuries, the command was punishing and setting an example in front of peers in the Battery. The applicant was required to conduct a class of assembling/disassembling a SAW even though the profile stated he was not to be around any weapons of any kind. The applicant stated doing this was very uncomfortable as he had just come out of hospitalization for behavioral health. The applicant declares bullying by CPT K. and subordinates. The applicant had informed them he would be speaking to the Inspector General, but this did not help the case as there were continued feelings of being bullied, isolated, and not welcome in the Battery. In a records review conducted on 18 January 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, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 19 July 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 May 2018 (2) Basis for Separation: The applicant was informed of the following reasons: it was evident he lacked the motivation to remain in the United States Army. He failed to obey lawful orders; failed to be in the right uniform; made a false official statement and failed to be at his appointed place of duty on numerous occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 29 May 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 June 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 January 2017 / 4 years, 32 weeks b. Age at Enlistment / Education / GT Score: 20 / some college / 104 c. Highest Grade Achieved / MOS / Total Service: E-3 / 14G1P, Air Defense Battle Management System Operator / 1 year, 6 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 29 March 2012, for dereliction in the performance of his duties by willfully failing to be in the proper uniform after attending a medial appointment (7 March 2018); and, make a false official statement to 2LT D. N. “Nothing happened at the aid station, everything was fine” (22 February 2018). The punishment consisted of a reduction to E-2; forfeiture of $428 pay; and, extra duty and restriction for 14 days. Seven Developmental Counseling Forms, for various acts of misconduct or poor performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 April 2018, reflects 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. There was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels and these diagnoses do not constitute matters in extenuation that relate to the basis for administrative separation (did not significantly contribute to the reason for separation. The applicant was diagnosed with: Adjustment Disorder with mixed disturbance of emotions and conduct. The applicant provided a copy of a VA disability rating decision, dated 21 August 2018, reflecting the applicant was rated 70 percent disability for adjustment disorder with mixed anxiety and depressed mood with insomnia disorder (also claimed as anxiety/depression/sleep disturbances). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; third party letter; VA Rating Decision; VA Summary of Benefits letter; DD Form 214; DD Form 2870; active duty medical records. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12b, 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: 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 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 contends the VA has granted a service-connected disability for his behavioral health condition which led to his discharge. The applicant provided a VA rating decision to support his contention, which reflects the applicant was rated 70 percent service connected for adjustment disorder with mixed anxiety and depressed mood with insomnia disorder. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member’s discharge. The applicant’s AMHRR includes a mental status evaluation (MSE), which reflects there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels and these diagnoses do not constitute matters in extenuation that relate to the basis for administrative separation (did not significantly contribute to the reason for separation. The applicant was diagnosed with: Adjustment Disorder with mixed disturbance of emotions and conduct. The MSE was considered by the separation authority. The applicant contends the discharge should have been for medical reasons, but his command repeated ignored his behavioral health specialist recommendations. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends he was made an example of by his command because of his injuries. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he was bullied by his commander her subordinates. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s struggle with mental health. 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. AHLTA has an in-service BH diagnosis of Adjustment Disorder. JLV has an additional post-service BH diagnosis of Major Depression. The applicant is 100% service connected, 70% for chronic Adjustment Disorder. The applicant’s Adjustment Disorder BH condition could mitigate the basis for applicant’s separation. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that applicant has an in-service BH diagnoses of Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the applicant’s Adjustment Disorder does not excuse or mitigate the basis of applicant’s separation. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that even though the applicant has a BH diagnosis of Adjustment Disorder, it is not a mitigating factor for his misconduct that was the basis for applicant’s separation: Failure to obey lawful orders; failure to be in the right uniform; making a false official statement and failure to be at his appointed place of duty on numerous occasions. All of these applicant misconduct actions are not part of the sequela of Adjustment Disorder. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB concurred with the Board’s Medical Advisor and determined that the applicant’s Adjustment Disorder did not outweigh the basis of applicant’s 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 determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. (2) The applicant contends the VA has granted a service-connected disability for his behavioral health condition which led to his discharge. The ADRB considered this contention but 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 Servicemember 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 while the applicant has a BH diagnosis of Adjustment Disorder, it is not a mitigating factor for his misconduct that was the basis for applicant’s separation. (3) The applicant contends command used the injuries as an example for others not to follow. The Board considered this contention in its deliberations and that the applicant consulted with legal counsel, and ultimately the Board determined the command did not act in an arbitrary or capricious manner regarding applicant’s separation action. (4) The applicant contends he was bullied by his commander and her subordinates. The Board considered this contention in its deliberations and that the applicant consulted with legal counsel, and ultimately the Board determined the command did not act in an arbitrary or capricious manner regarding the applicant’s separation action. 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 Adjustment Disorder did not mitigate the applicant’s basis for separation offenses of failure to obey lawful orders; failure to be in the right uniform; making a false official statement and failure to be at his appointed place of duty on numerous occasions. 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 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 AR20210003208 1