1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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 through counsel, seeks relief contending, in effect, wanted nothing more than to serve the country, so much the applicant enlisted into the United States Army. The applicant returned home with many traumatic memories and injuries, which would later lead to diagnosis of PTSD. This Board can restore some measure of justice and dignity to the applicant by upgrading the applicant's discharge to honorable. To not do so would go against the essence of the new clarifying guidelines issued regarding veterans' requests for modification of their discharge due to diagnoses such as PTSD. The applicant is proud of the fact the applicant served in the United States Army, but the badge of inferiority and shame remains due to the less than honorable discharge status. In a records review conducted on 6 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: Misconduct (Drug Abuse) / AR 635- 200, Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 12 October 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 August 2006 (2) Basis for Separation: Under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, the applicant was informed of the following reasons: The applicant was convicted through Summary Court Marital on 30 August 2006 for disobeying a superior commissioned officer (Article 90), Damaging Government Property (Article 108), illegal use of marijuana x2 (Article 112a), and stealing gasoline from AAFES (Article 121). Service Member has received two previous company grade Article 15s (disrespect and disobeying lawful orders) and two previous field grade Article 15s (both for drug use). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 16 August 2006 (5) Administrative Separation Board: On 16 August 2006, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: On 28 September 2006, the separation authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense. / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 November 2003 / 3 years / The applicant's DD Form 214, block 12a, erroneously reflects: 13 November 2003. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 14S10, Avenger Crewmember / 2 years, 11 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (21 June 2004 - 20 June 2005) f. Awards and Decorations: NDSM, GWOTSM, ICM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 15 July 2005, for being disrespectful in language towards a noncommissioned officer, on or about 23 June 2005; and disobeying a lawful order on or about 6 May 2005. The punishment consisted of a reduction to E-3; forfeiture of $300 pay (suspended); and, extra duty for 14 days. CG Article 15, dated 21 September 2005, for wrongfully communicate to SGT R. on or about 8 September 2005; failing to go at the time prescribed to appointed place of duty on or about 8 September 2005; and, making a false office statement on or about 8 September 2005. The punishment consisted of a reduction to E-2; forfeiture of $150 pay (suspended); and, extra duty and restriction for 14 days. FG Article 15, dated 2 April 2006, for wrongfully using marijuana (between 22 February 2006 and 22 March 2006). The punishment consisted of forfeiture of $636 pay per month for two months; and, extra duty for 45 days. Record of Trial by summary Court-Martial, reflects the applicant was charged with: Charge I: Article 90, UCMJ, having received a lawful command from 1LT K. P., the applicant's superior commissioned officer, then know by the applicant to be the applicant's superior commissioned officer, to park privately owned vehicle, or words to that effect, did, at or near Fort Hood, Texas, on or about 5 April 2006, willfully disobey the same. Guilty, consistent with the plea. Charge II: Article 108, UCMJ, without proper authority, willfully damage by throwing on the ground a Micron GX3 laptop computer, military property of the United State, on or about 22 March 2006, the amount of said damage being the sum of about $243.62. Guilty, consistent with the plea. Charge III: two specifications of Article 112a, UCMJ: Specification 1: The applicant did, at or near Fort Hood, Texas, between on or about 6 April 2006 and on or about 5 May 2006, wrongfully use marijuana. Guilty, consistent with the plea. Specification 2: The applicant did, at or near Fort Hood, Texas, between on or about 21 May 2006 and on or about 20 June 2006, wrongfully use marijuana. Guilty, consistent with the plea. Charge IV, Article 121, UCMJ, the applicant did, at or near Fort Hood, Texas, on or about 4 April 2006, steal approximately 15 gallons of unleaded gasoline, of a value of about $38.79, property of Army Air Force Exchange Service, a Department of Defense non-appropriated fund activity. Guilty, consistent with the plea. The following sentence was adjudged: To be confined for 30 days and to forfeit $849 pay for one month. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 29 August 2006, revealed no evidence of suicidal or homicidal behavior, altered thought process or any other mental health condition which would explain the behavior which resulted in the initiation of this administrative action. Service member is psychologically cleared for any administrative action deemed appropriate by command. Diagnosis: Axis I: Occupational Problem. The applicant provided a copy of VA disability rating decision, dated 23 April 2019, which reflects the applicant was granted a service connection for treatment purposes only under 38 U.S.C. chapter 17 for PTSD (previously rated as depression, diagnostic code 9434/adjustment disorder, diagnostic code 9440). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 149; legal brief; DD form 214; self- authored statement; Memorandum For Secretaries Of The Military Departments; VA Rating Decision; GAO document; cover letter; VA Form 21-22a. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse). 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends suffering from PTSD. The applicant provided a copy of VA rating decision indicating diagnosed with PTSD. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 29 August 2006, which indicates the applicant was psychologically cleared for any administrative action deemed appropriate by command. Diagnosis: Axis I: Occupational Problem. The MSE was considered by the separation authority. The applicant contends good service, including a combat tour. 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. 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 determined the applicant is diagnosed with combat-related PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board arrived at this finding based upon the applicant being diagnosed by the VA with military service combat-related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor opined that applicant's discharge is partially mitigated by applicant's PTSD owing the nexus between PTSD and difficulty with authority figures, and substance use. Applicant's PTSD mitigates applicant's disobeying a superior commissioned officer and multiple incidents of marijuana use, however, PTSD does not mitigate applicant's damaging government property or stealing gasoline since PTSD does not interfere with one's ability to distinguish between right and wrong and act in accordance with the right, therefore applicant's PTSD does not fully mitigate the basis for applicant's separation. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's PTSD does not medically mitigate or outweigh the applicant's offenses of damaging government property and stealing gasoline as the unmitigated basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends he suffers from PTSD. The Board reviewed the applicant's DOD and VA health records and determined after applying liberal consideration that applicant's combat-related PTSD partially mitigated the offenses which were the bases for separation. However, the Board voted that the applicant's offenses of damaging government property and stealing gasoline are not medically mitigated and outweighed the applicant's combat-related PTSD. (2) The applicant contends good service, including a combat tour. The Board considered applicant's quality of service and determined 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 damaging government property and stealing gasoline, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (3) 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. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 damaging government property and stealing gasoline. 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 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 AR20210003304 1