1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Representative: 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, requests removal of any and all related derogatory comments, documents, and actions from the applicant's official military personnel file; full credit for initial active duty enlistment for 3 years and 27 weeks as indicated on applicant's original enlistment documentation; promotion to E-4 based on missed opportunities relevant to the expected time in grade and service upon granting relief; and, equitable determination through the MEB/PEB based on the preponderance of the evidence. The applicant states applicant was inappropriately discharged and subjected to unjust injustice actions which resulted in inequitable circumstances which led to the discharge. The applicant's in service diagnosis and treatment for Adjustment Disorder and Depression, which began in July 2018 through the applicant's discharge from active duty, clearly met the standards which should have warranted an evaluation through the MEB/PEB IDES process to determine applicant's fitness for duty. The applicant was placed on high risk for suicide, restricted from applicant's home, duty restrictions with periods of ineligibility for deployments, among several other actions which further exasperated applicant's mental health conditions and created more debilitating complications and stressors. The command made the determination to administratively discharge the applicant for misconduct for alleged incidents from several months' prior although applicant suffered diagnosed mental health conditions. Prior to the onset of the conditions, the applicant did not have any disciplinary issues, which can clearly be attributed to mitigating factors associated with applicant's military service and stressors. Since discharged, the applicant has been displaced and homeless, and currently moves around between different family members for temporary lodging when available. The applicant is currently separated from applicant's spouse and has been since placed on a restraining order while on active duty with expectations of a divorce in the future. The applicant has been unable to maintain employment since applicant's discharge. The applicant was terminated from each job in very short periods of time after starting due to applicant's inability to appropriately manage applicant's mental conditions. In a records review conducted on 1 February 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions). b. Date of Discharge: 29 January 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The notification of initiation of separation proceedings is void from the applicant's service record; however, the Commander's Report, dated 21 December 2018, reflects the specific reasons for the separation: On or about 6 July 2018 and on or about 3 September 2018, the applicant wrongfully assaulted applicant's spouse. (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 8 January 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 August 2017 / 3 years, 27 weeks b. Age at Enlistment / Education / GT Score: 22 / Some College / 96 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91B10, Wheeled Vehicle Mechanic / 1 year, 5 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Commander's Report as previously described in paragraph 3c. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 12 December 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. Diagnoses: Adjustment Disorder with Depressed Mood. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; legal brief; college transcript; VA Form 21- 0960C-8; separation packet; Medical Record. 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, 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 waivable and nonwaivable 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 waivable. 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 requests removal of any and all related derogatory comments, documents, and actions from the applicant's official military personnel file; full credit for initial active duty enlistment for 3 years and 27 weeks as indicated on applicant's original enlistment documentation; promotion to E-4 based on missed opportunities relevant to the expected time in grade and service upon granting relief; and, equitable determination through the MEB/PEB based on the preponderance of the evidence. The applicant's requests do not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends applicant was inappropriately discharged, and subjected to unjust injustice actions which resulted in inequitable circumstances which led to the discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends PTSD and in service diagnosis and treatment for Adjustment Disorder and Depression should have warranted an evaluation through the MEB/PEB IDES process. The applicant's AMHRR contains documentation which supports a diagnosis of in-service depression. The record shows the applicant underwent a mental status evaluation (MSE) on 12 December 2018, which indicates the applicant was mentally responsible and was able to recognize right from wrong. The MSE was considered by the separation authority. 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 family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends current homelessness and the need for help. Eligibility for housing support program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 DoD and VA medical records and found the applicant was diagnosed with Adjustment Disorder and separately contended PTSD, which, in the opinion of the Board's Medical Advisor could potentially mitigate the assault misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor reviewed DoD and VA medical records and found the applicant was diagnosed with an in-service BH diagnosis of Adjustment Disorder. VA records do not contain any additional post-service diagnoses. The applicant is 100% service connected, 70% for Anxiety Disorder. There is no evidence however, including by applicant contention that applicant had PTSD during military service, (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, although the applicant has a diagnosis of Anxiety Disorder, based on some evidence to suggest the applicant's separation may have been due to assault of applicant's spouse, applicant's diagnoses of Anxiety Disorder would not actually mitigate assault since assault is not part of the array of symptoms associated with Anxiety Disorder. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the Board's Medical Advisor that applicant's Adjustment Disorder does not outweigh the applicant's discharge for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends applicant was inappropriately discharged, and subjected to unjust injustice actions which resulted in inequitable circumstances which led to the discharge. The Board considered this contention but determined that the evidence does not overcome the presumption of government regularity. (2) The applicant contends PTSD and in service diagnosis and treatment for Adjustment Disorder and Depression should have warranted an evaluation through the MEB/PEB IDES process. The Board considered this contention, including the applicant's assertion of PTSD, however the Board determined the applicant did not have an in-service condition that warrants a change to the applicant's discharge. (3) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention but determined that this contention does not support any change to the applicant's discharge. (4) The applicant contends current homelessness and the need for help. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time in civilian life subsequent to leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service factors help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character, or that a change is warranted based on some other inequity. In this case, the Board determined that this contention did not support any change to the applicant's discharge. The applicant is eligible for VA homelessness assistance with the current discharge. (5) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 the evidence supported the Board's conclusion that the applicant's discharge was proper and equitable. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210003310 1