1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, after becoming a citizen of the United States, wanted to serve applicant’s new country and intended to serve 20 years in the military. When the former servicemember arrived at first duty station in 2016, the unit was in NTC training. Applicant pulled guard duty, etc., while awaiting the return of the unit. After the unit returned, applicant had a good relationship with NCOs and they always encouraged applicant to do things until they were right. In August 2017, applicant had a run in with 1LT K., who was a micromanager and made the applicant feel worthless. The applicant became responsible for all the arms and had to work between the arms room and the supply room. Applicant was responsible for many of items others had been responsible for before and had left in a state of flux. As applicant’s command changed, there were new higher-ups and applicant became stressed due to 1LT K., as applicant tried to figure things out. Applicant was regularly threatened they were going to kick the former servicemember out of the Army. Applicant was told applicant would never be a good Soldier. On 22 August 2017, the applicant was taken to the Emergency Department after attempting to cut applicant’s wrist at the end of the day. The next day applicant went to behavioral health clinic for follow-up. The applicant reported being overwhelmingly stressed and angry due to the level of stress caused by the unit. Applicant was diagnosed with Adjustment Disorder on 24 August 2017, and continued to see behavior health for one-on-one counseling throughout the fall of 2017 and spring of 2018. Applicant attended group therapy sessions weekly and had never taken medication for adjustment disorder. In 2018, applicant was transferred to work in a S4 section to assist SFC R, who believed the applicant was never good enough for the job. SFC R constantly threatened to throw applicant out of the Army and advised applicant against college because the NCO wanted applicant to focus on this job in the unit. SFC R never taught applicant how to be a Soldier, only watched out for SFC R and every time the applicant worked with SFC R, applicant would get stressed out and intimidated. Applicant was given a counseling form on 19 June 2018, informing the applicant of being flagged to initiate involuntary separation. SFC R., took applicant to Behavioral Health and the medical record shows applicant was treated for “work stress” as well as inpatient treatment after applicant made comments about having suicidal ideations. Applicant was ultimately discharged on 31 October 2018. Former servicemember was rated 50 percent service connected for mixed anxiety and depressed moods effective 1 November 2018. The applicant seeks treatment at the VA every time the applicant feels overwhelmed. Applicant is currently at critical risk for suicide and is unemployed and trying to find a job and is stressed about not having work. Applicant served honorably and the General (Under Honorable Conditions) discharge no longer serves a purpose. In a records review conducted on 11 January 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions). b. Date of Discharge: 31 October 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 30 August 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 3 April 2018, the applicant was derelict in the performance of duties in which the applicant negligently failed to follow proper procedures of Preventive Maintenance Checks and Services on the M-ATV, resulting in the fire suppression being set off. Having received a lawful order from SFC R., a noncommissioned officer, to bring TMs for the HMMWV and M-ATV, willfully disobeyed on or about 16 April 2018 and on or about 23 April 2018. Having received a lawful order from SFC R, to put a “Do Not Turn On” sign in the S4 HMMWV, willfully disobeyed on or about 23 April 2018. Having received a lawful order from 1LT K., to identify empty tricons on applicant’s property book, willfully disobeyed. On or about 23 April 2018, applicant was derelict in performance of duties in which applicant willfully left the TACLANE, a sensitive item unsecure. On or about 31 May 2018, applicant was disrespectful in language and deportment towards SFC R., who was then in the execution of SFC R office, by smacking lips, sighing and saying to SFC R, “whatever,” or words to that effect. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 September 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 September 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 January 2018 / 3 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 3 years, 7 months, 27 days d. Prior Service / Characterizations: RA, 28 July 2015 – 29 January 2018 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 26 June 2018, on or about 31 May 2018, was disrespectful in language and deportment toward SFC R., a noncommissioned officer by smacking lips, signing and saying to SFC R, “whatever,” or words to that effect; on or about 16 April 2018, having received a lawful order from SFC R., to bring TMs for the HMMWV and M-ATV, willfully disobey the same; and, on or about 3 April 2018, were derelict in the performance of those duties in which applicant negligently failed to follow proper procedures of Preventive Maintenance Checks and Services on the M-ATV, resulting in the fire suppression system being set off, as it was the applicant’s duty to do; and on or about 23 April 2018, disobeyed a lawful order from SFC R., to put “Do Not Turn On” sign in the S4 HUMMWV, willfully disobey the same; on or about 4 May 2018, were derelict, in the performance of those duties in which applicant willfully left the TACLANE a sensitive item unsecure; and, on or about 23 April 2018, having received a lawful order from 1LT K., to identify empty tricons on applicant’s property book, willfully disobey the same. The punishment consisted of a reduction to E-3; oral reprimand. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation (MSE), dated 10 July 2018, reflects the applicant was screened for PTSD, TBI and military sexual assault. Applicant is mentally responsible for behavior, can distinguish between right and wrong, and possesses sufficient mental capacity to participate intelligently in any administrative action deemed appropriate by Command. BH Diagnoses: Adjustment Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; legal brief; DA Form 3822; Health Record; Honorable Discharge Certificate; 3 letters of support. 6. POST SERVICE ACCOMPLISHMENTS: Counsel states, the applicant has sought to fix applicant’s life since being separated. Applicant has received statements from fellow service members, co-workers, and friends attesting positively to applicant’s character during and after applicant’s career in the Army. 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. 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 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 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 harassment by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment.The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the VA has granted 50 percent service-connected disability for mixed anxiety and depressed moods effective 1 November 2018. There is no evidence in the AMHRR, nor has the applicant produced his VA disability rating. Report of Mental Status Evaluation (MSE), dated 10 July 2018, reflects the applicant was screened for PTSD, TBI and military sexual assault. In-service records reflects a BH Diagnoses of Adjustment Disorder, unspecified. The applicant contends an upgrade of the discharge will allow the applicant to obtain employment. The Board does not grant relief to gain employment or enhance employment opportunities The applicant contends post-service accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct while serving in the Army. 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 an in-service Adjustment Disorder and post-service with Major Depression, which, in the opinion of the Board’s Medical Advisor could potentially mitigate performance issues, willfully disobeying an order and disrespect which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found the applicant had an in-service Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board’s Medical Advisor, after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, opined that applicant’s Adjustment Disorder only partially mitigates performance issues, but does not mitigate willfully disobeying an order and disrespect, as these behaviors are not part of the sequela of Adjustment Disorder. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the applicant’s willfully disobeying an order and disrespect outweighed the applicant’s Adjustment Disorder and Major Depression for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board determined 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”. 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 the SPD code should be changed. The Board determined that the SPD code was appropriate for the applicant’s discharge. It should be noted that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty, and administratively linked to the reason for separation. 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. (3) The applicant contends harassment by members of the chain of command. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with command disputes and there was sufficient evidence that such assistance was not pursued. Therefore, the Board determined that this contention will not affect applicant’s discharge. (4) The applicant contends the VA has granted 50 percent service-connected disability for mixed anxiety and depressed moods effective 1 November 2018. The Board liberally considered the medical diagnosis and supporting information from the VA regarding applicant’s discharge. However, the ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. (5) The applicant contends an upgrade of the discharge will allow the applicant to obtain employment. The Board does not grant relief to gain employment or enhance employment opportunities. (6) The applicant contends post-service accomplishments. The Board found the applicant’s post-service accomplishments did not warrant a change to applicant’s discharge. 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 or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 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, the applicant’s BH conditions did not outweigh the basis for applicant’s separation. 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 AR20210003329 1