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, his discharge was unjust because he was diagnosed with PTSD before his discharge from the Army and because of this, the reason for the discharge was wrong. The applicant had problems at work and with family because of PTSD; he lost jobs and assaulted his spouse. The stigma of having PTSD, which was used against him by the Bronx District Attorney's office in his murder conviction, which was a separate case where he was a 100 percent innocent. Another person confessed to the murder prior to the trial, but the District Attorney failed to investigate and now the applicant is locked up for someone else's crime. The applicant is currently on a direct appeal and is confident the truth will be brought to light. The applicant requests a narrative reason change and a reentry eligibility (RE) code change. 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 November 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2007 (2) Basis for Separation: The applicant was informed of the following reasons: On 9 November 2006, he failed to go to his appointed place of duty, which resulted in a Summarized Article 15 and on 28 August 2007, he was disrespectful to a Non-commissioned officer. On 20 September 2007, he disobeyed an order by a Noncommissioned Officer, to come back to the office; he was disrespectful toward a superior Non-commissioned officer; he disobeyed an order by a Non-commissioned officer, to "at ease"; and he communicated a threat to First Sergeant G; which acts resulted in a field grade article 15. On 4 October 2007, he disobeyed a lawful order. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 23 October 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 October 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 September 2005 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 19 / GED / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 years, 3 months, 29 days d. Prior Service / Characterizations: USAR, 2 August 2004 - 25 September 2005 / HD IADT, 18 August 2004 - 17 December 2004 / UNC (Concurrent Service) e. Overseas Service / Combat Service: Germany, SWA / Iraq (28 July 2007 - 16 November 2007) f. Awards and Decorations: NDSM, GWOTSM, ICM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 20 January 2006, for willfully damage a laptop computer and monitor, the amount of the damage being the sum of about $2500, the property of Mrs. B. On 19 November 2005, orally communicate to Mr. B., certain indecent language and a threat, to wit: "Fuck you" and "come outside, I'll beat your brain out" or words to that effect. The punishment consisted of a reduction to E-2; forfeiture of $717 pay per month for two months; and, extra duty for 45 days. Summarized Article 15, dated 20 June 2006, for failing to go at the time prescribed to his appointed place of duty 16 and 17 May 2006 and, willfully disobeyed a lawful order to write a three-hundred-word essay on 17 May 2006. The punishment consisted of extra duty for 7 days. Summarized Article 15, dated 14 February 2007, for failing to go at the time prescribed to his appointed place of duty (9 November 2006). The punishment consisted of extra duty for 6 days. Report of Mental Status Evaluation, dated 20 September 2007, reflects the applicant could understand the difference between right and wrong and could participate in the proceedings. Report of Mental Status Evaluation, dated 21 September 2007, reflects the applicant could understand the difference between right and wrong and could participate in the proceedings. FG Article 15, dated 8 October 2007, for failing to obey a lawful order on 20 September 2007 for disrespectful language towards an NCO. On 20 September 2007 willfully disobeyed a lawful order from NCO and, other additional charges, however the document was illegible. The punishment consisted of a reduction to E-2; forfeiture of $729 pay (suspended); and, extra duty for 45 days. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his VA benefits letter, dated 1 April 2019, which reflects the applicant was rated at 70 percent disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; VA Benefits letter; VA Rating Decision; two self-authored letters; Bronx DA News 12 Battle Over Outtakes in Murder Case; Letter from Attorney; New York Supreme Court, Brief for Defendant Appellant with Documents. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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 SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12b, is "JKA." The applicant contends he was diagnosed with PTSD before his discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did submit evidence to support the contention the discharge resulted from a medical condition. The applicant provided a copy of his VA benefits letter, dated 1 April 2019, which reflects the applicant was rated at 70 percent disability for PTSD. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on the 20 and 21 September 2007, 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 he was not given the proper mental help prior to discharge. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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 applicant's PTSD could mitigate the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant's PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor determined that the medical condition partially mitigates the basis of separation because the sequelae of PTSD include avoidance and difficulty with authority, therefore, FTR, disrespect, and disobeying an order are mitigated. However, communicating a threat is not mitigated by applicant's PTSD given the severity of the behavior and the fact that threatening others is not part of the sequelae of PTSD. (4) Does the condition or experience outweigh the discharge? No. The Board, after liberal consideration, concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's PTSD alone does not outweigh the unmitigated threats that were the basis of applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge and SPD code should be changed. The Board determined that the applicant did not provide any evidence to counter the basis for separation or mitigating circumstances for the Board to consider. 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. (2) The applicant contends being diagnosed with PTSD. The Board liberally considered this contention and determined the applicant's PTSD partially mitigated the basis for separation. However, communicating a threat is not mitigated by applicant's PTSD given the severity of the behavior and the fact that threatening others is not part of the sequelae of PTSD. (3) The applicant contends not giving the proper mental help prior to discharge. The Board considered this contention and found the weight of the evidence did not overcome the presumption of government regularity including applicant's command counseling sessions. The separation file in the applicant's AMHRR indicates that the applicant consulted with legal counsel; therefore, the Board concluded the command did not act in an arbitrary or capricious manner. (4) The applicant desires to rejoin the Military Service. The Board determined that the applicant's request to rejoin the military does not fall within the purview of the ADRB. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. 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 of all the evidence before the Board, the applicant's BH diagnoses of PTSD did not excuse or mitigate the offenses of communicating a threat. 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 AR20210003287 1