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, he served a total of six years and seven months on active duty. During this time, the applicant deployed to Iraq and Afghanistan. After the applicant's deployments, he was diagnosed with hearing and vision loss and severe PTSD and mild TBI. The applicant received various awards and was serving on his second enlistment when he was discharged. The highest rank the applicant held was Specialist and he was stationed at three different locations while in the service. After the applicant was discharged, he was unable to receive treatment for any of his combat related issues due to his characterization of service. The applicant had a hard time with depression which is linked to his PTSD and still cannot receive any assistance. At the time his unit was preparing to separate the applicant, he was preparing to deploy again. Prior to Major General P's. decision to discharge the applicant, the applicant was found unretrainable by Army standards due to his PTSD and TBI. The applicant completed the medical evaluation board proceeding. The separation was based on a tampering with evidence charge, which the applicant was found not guilty on 16 September 2014 in district court. The applicant believes based on his official military personnel file, his service record, and this being his first offense, he should be eligible for an upgrade. The applicant was found not guilty by the civilian court and this offense was the basis for his military discharge and loss of rank. The applicant was deemed insane at the time of the incident. The applicant believes with an upgrade, he will be able to receive treatment for his post-traumatic stress disorder and traumatic brain injury, as well as other injuries sustained in combat. In a records review conducted on 3 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, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 27 September 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 March 2009 / 6 years b. Age at Enlistment / Education / GT Score: 20 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 6 years, 7 months, 1 day d. Prior Service / Characterizations: RA, 27 February 2007 - 25 March 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (17 October 2007 - 31 March 2008); Afghanistan (20 October 2009 - 13 October 2010) f. Awards and Decorations: ARCOM, AAM, NDSM, ACM-2CS, GWOTSM, ICM-CS, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided various documents pertaining to separation proceedings, but the majority of the documents were unsigned and/or undated. The documents appear to reflect the applicant's immediate commander recommended an under other than honorable conditions based on the applicant negligently discharging a firearm, which resulted in the personal injury of Ms. M.K. The applicant requested an administrative board, but there is no evidence a board convened. The applicant provided an Affidavit from Mr. B.G., reflecting Mr. B.G. shared an apartment with the applicant and the applicant's girlfriend, Ms. M.K. On the early morning of 23 September 2012, the applicant was awakened by a loud noise that sounded like gun fire. He went to investigate and found an AK-47 on the floor, Ms. M.K. injured at the ankle, and the applicant rendering aid to Ms. M.K. Mr. B.G. secured the firearm and placed it in the closet and the applicant called the police. Mr. B.G. informed the police he did not witness the incident and no one told him to tamper with evidence or mislead investigators nor did he witness the applicant tamper with any evidence. DD Form 214 (Certificate of Release or Discharge from Active Duty), indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of under other than honorable conditions. Headquarters, U.S. Army Garrison, Fort Bliss, TX, Orders Number 267-0041, dated 24 September 2013, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 27 September 2013 from the Regular Army. The applicant provided two Developmental Counseling Forms, for pending separation due to incident of discharging a firearm and July 2013 monthly performance counseling. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided: Two Physical Profiles, dated 25 April 2013 and 7 May 2013, reflecting the applicant had post- traumatic stress disorder, chronic. The physician stated the Servicemember may pose a risk to self or others if given access to firearms; Servicemember is taking multiple medications requiring frequent medical visits for monitoring safety and effectiveness; and needs an MEB. Memorandum, subject: Notification of Medical Evaluation Board Action and Request for Personnel Data, dated 9 May 2013, reflect the applicant was undergoing physical disability processing. Department of Veterans Affairs (VA) Letter, dated 8 August 2018, reflecting the VA determined the applicant's service was honorable from 27 February 2007 to 3 July 2010 and from 4 July 2010 to 27 September 2013. The applicant completed initial term of service and during his second enlistment period, he was discharged with an under other than honorable conditions. The applicant was indicted by civilian court on the offense of tampering/fabricating physical evidence and was acquitted, but he was indicted with aggravated assault with a weapon, a felony offense. The applicant underwent a VA/DoD Joint Disability Evaluation Board, which determined the applicant had chronic PTSD. While on active duty the applicant was diagnosed with: Personality Disorder; Episodic Mood Disorder, and Major Depressive Disorder. On 27 September 2013, the applicant was separated with an under other than honorable conditions. The VA deemed the applicant insane at the time of committing the act leading to the under other than honorable conditions; there was sufficient evidence in his file to show he was incapable of distinguishing right from wrong. VA Rating Decision, dated 26 September 2018, reflecting the applicant was rated 70 percent disability for PTSD and TBI. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; two DD Forms 293; self-authored statement; DD Form 214; unsigned/undated administrative separation documents; MEB proceedings documents; VA disability letter; VA disability rating decision; third-party Affidavit; Register of Actions. 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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. (8) 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 a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. The applicant provided documents from his separation proceedings which revealed the basis for his separation, but the documents were unsigned. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of under other than honorable conditions. The applicant contends suffering from PTSD, TBI, and other combat related injuries, which affected his behavior and ultimately led to his discharge. The applicant's AMHRR contains no documentation of PTSD, TBI, or other mental health diagnosis. The AMHRR is void of a mental status evaluation. The applicant provided evidence reflecting he was pending an MEB for PTSD during the time he was being processed for involuntary separation. Additionally, the applicant provided VA medical documents reflecting he was diagnosed with Personality Disorder; Episodic Mood Disorder, and Major Depressive Disorder, while on active duty and the VA/DoD Joint Disability Evaluation Board determined the applicant had chronic PTSD. The VA deemed the applicant insane and incapable of distinguishing right from wrong at the time he committed the incident which led to his discharge. The applicant was rated 70 percent disability by the VA for PTSD and TBI. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. The applicant contends he was found not guilty of the incident which was the basis for his discharge. The applicant provided court documents reflecting he was found not guilty for tampering with evidence. The VA documents provided by the applicant reflect he was also indicted for aggravated assault with a weapon (verdict unknown). The applicant provided incomplete administrative separation documents reflecting he was discharged for negligently discharging a firearm, which resulted in the personal injury of Ms. M.K. The applicant contends good service to include two combat tours. The applicant contends an upgrade would allow him to receive medical treatment for his illnesses. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 the applicant was diagnosed in service with PTSD and TBI that may mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. Applicant was diagnosed in service with PTSD and TBI for which he is also service connected by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The full facts and circumstances of applicant's separation are not contained in the file; however, medical record reveals the misconduct that led to applicant's separation was an arrest by civilian authorities for discharging a firearm and injuring a civilian. If the Board elects to accept the basis of separation, applicant's PTSD and TBI do not mitigate the accepted basis of separation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Medical Advisor that the applicant's BH conditions do not mitigate an arrest by civilian authorities for discharging a firearm and injuring a civilian, which is the accepted basis of separation. The Board determined the BH conditions did not outweigh the agreed upon basis of separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD, TBI, and other combat related injuries, which affected the behavior and ultimately led to the discharge. The Board concurred with the Board's Medical Advisor that applicant's BH conditions do not excuse or mitigate the accepted basis of separation and therefore, the discharge was proper and equitable. (2) The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Board determined this contention was valid but did not affect the Board's conclusion regarding whether or not an upgrade was appropriate. (3) The applicant contends being found not guilty of the incident that caused discharge. The Board considered this contention but determined that the weight of the evidence did not support this contention or mitigate circumstances for the Board to consider when other evidence supports a conclusion that applicant was indicted for the second of two charges, specifically indicted for aggravated assault with a weapon. The separation file in the AMHRR indicates that the applicant consulted with legal counsel, and the Board determined the command did not act in an arbitrary or capricious manner. (4) The applicant contends good service to include two combat tours. The Board considered applicant's service to include two combat tours during its deliberation. (5) The applicant contends an upgrade would allow receipt of medical treatment of any illnesses. 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. 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 of all the evidence before the Board, the applicant's BH conditions did not outweigh the offenses of discharging a firearm and injuring a civilian. 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 above, 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 AR20210003226 1