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, after returning from Afghanistan in 2010, applicant was diagnosed with PTSD, which caused the punishment. The applicant lost rank, pay and received an under other than honorable conditions discharge for disobeying a direct order due to risky personal life. In a records review conducted on 14 December 2021, 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 (Minor Infractions) / AR 635-200 / Chapter 14-12a / JKN / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 January 2011 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 23 December 2010, the applicant was charged with: Charge I: Violating Article 86, UCMJ, for being AWOL from on or about 25 November 2010 until on or about 30 November 2010. Charge II: Violating Article 92, UCMJ: Specification 1: In that the applicant did, having knowledge of a lawful order issued by CPT N. D., to wit: to not to have any further contact with T. B., an order which it was duty to obey, did on divers occasion between on or about 2 December 2010 and on or about 4 December 2010, fail to obey the same by wrongfully having contact with T. B. Specification 2: In that the applicant did, having knowledge of a lawful order issued by CPT N. D., to wit: to not have any further contact with T. B., an order which it was duty to obey, did on or about 20 December 2010, fail to obey the same by wrongfully having contact with T. B. Charge III: Violating Article 134, UCMJ: Specification 1: In that the applicant having been restricted to the limits of Fort Carson, Colorado, by a person authorized to do so, did, on or about 3 December 2010, break said restriction. Specification 2: In that the applicant having been restricted to the limits of Fort Carson, Colorado, by a person authorized to do so, did, on or about 20 December 2010, break said restriction. (2) Legal Consultation Date: 23 December 2010 (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 12 January 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 November 2010 / NIF b. Age at Enlistment / Education / GT Score: 25 / GED / 111 c. Highest Grade Achieved / MOS / Total Service: E-3 / 31B10, Military Police / 2 years, 3 months, 28 days d. Prior Service / Characterizations: RA, 11 September 2008 – 24 November 2010 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (12 May 2009 – 14 May 2010) f. Awards and Decorations: ACM-CS, AAM, USNAM, VUA, NDSM, GWOTSM, ASR, OSR, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. CG Article 15, dated 6 July 2009, for failing to obey a lawful order issued by CPT E. J. on or about 16 June 2009. The punishment consisted of a reduction to E-2; forfeiture of $304 pay (suspended); and, extra duty and restriction for 14 days. No Contact Order, dated 17 August 2010, reflects the applicant was ordered not to have any contact with T. B. FG Article 15, dated 14 October 2010, for failing to obey a lawful order issued by CPT N. D. on or about 22 September 2010. The punishment consisted of a reduction to E-1; forfeiture of $723 pay per month for two months; and, extra duty and restriction for 45 days. Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective 25 November 2010; and, From “AWOL” to “PDY,” effective 30 November 2010. El Paso County Form, dated 6 December 2010, reflects the applicant was restrained on 3 December 2010, for: Charge 1: Assault 3-know/reckless Cause Injury. Charge 2: Harassment-strike/shove/kick. Charge 3: Telephone-obstruct Service. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 5 days, (AWOL, 25 November 2010 – 30 November 2010) / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 “JKN” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). 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 being diagnosed with PTSD after returning from Afghanistan. The applicant’s AMHRR contains no documentation of a PTSD diagnosis. The applicant did not submit any evidence to support a contention that the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation (MSE). ARBA sent a letter to the applicant at the address in the application on 23 November 2019, requesting documentation to support a PTSD diagnosis, but received no response from the applicant. The applicant contends being punished for disobeying a direct order due to a poor and risky personal life. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 Partner Relational Issues and Bereavement without Complications, which, in the opinion of the Board’s Medical Advisor could potentially mitigate the misconduct which led to applicant’s separation from the Army. Applicant contends PTSD that may mitigate applicant’s basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found the applicant is diagnosed with Partner Relational Issues and Bereavement without Complications in service. Applicant’s contention states that applicant suffered from PTSD while in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical advisor concluded that the applicant met retention standards at the time of discharge, and the weight of the evidence, even after liberal consideration does not support a conclusion that applicant had any service connected medical condition or experience that actually mitigates applicant’s misconduct (AWOL, violating a no contact order, breaking restriction) that was used as the basis for applicant’s separation. The applicant’s diagnosis of Partner Relational Issues and Bereavement does not mitigate the separating misconduct. Even if the board accepted the applicant’s claim of PTSD; PTSD does not mitigate the premeditated violation of a no contact order and breaking restriction in this case. (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 AWOL, violating a no contact order, breaking restriction to stay on Fort Carson outweighed the applicant’s documented Partner Relational Issues and Bereavement without Complications and applicant contended PTSD for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends being diagnosed with PTSD after returning from Afghanistan. The Board did not find the applicant’s PTSD outweighed the basis for applicant’s separation (premeditated violation of a no contact order and breaking restriction). 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 find a nexus between that medical condition or experience and the basis for applicant’s separation, and if a nexus, then the Board must further find that the medical condition or experience outweighed the basis for separation. (2) The applicant contends being punished for disobeying a direct order due to a poor and risky personal life. The Board determined that the evidence does not support any claim of arbitrary or capricious actions by the command. 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 diagnosed Partner Relational Issues and Bereavement without Complications, along with applicant’s PTSD contention did not fully mitigate, nor outweigh the offenses of AWOL, violating a no contact order, breaking restriction to stay on Fort Carson. 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 AR20210003333 1