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, he urges the Army to give his upgrade serious reconsideration based on the Kennedy v. McCarthy decision and the liberal construction should be applied to these matters. He believes the evidence in his military and personal files support the fact his PTSD, TBI, recurrent nightmares, anxiety, insomnia and migraine headaches are service connected and his behavior was the result of his service connected illness and form the basis for the support of his application. He asked for help and was sent to the TBI clinic, but his sergeant pressured him to return to duty. He did not receive appropriate counseling and no one understood why he was failing as a Soldier. After his discharge, he was struggling with life issues, talking to himself and had no reason to live. His parents rescued him and ensured he received proper medical and psychological treatment at Kaiser Permanente. His records are attached. In a records review conducted on 23 November 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 8 July 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 March 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On 27 January 2017 he was caught pumping gas and leaving without paying at the AFFES Shoppette. On 23 January 2017 he reported 24 minutes late to work call and on 30 November 2016 he was 54 minutes late for work call. On 21 November 2016, he failed to report to 0800 roll call and on 31 October 2016 he failed to report to 0900 extra duty at building 902. On 31 October disobeyed a lawful order given to him by SSG R. V. to be in the designated uniform at 0550 before accountability formation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 25 May 2017, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 June 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 January 2016 / 5 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 1 year, 5 months, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 8 December 2016, for on or about 23 October 2016, for failing to go at the time prescribed to his appointed place of duty. On or about 31 October 2016, disobeyed a lawful order. The punishment consisted of forfeiture of $365 pay per month for one month suspended); and, extra duty and restriction for 14 days. Law Enforcement Report dated 31 January 2017, reflects at 1500 Hours, 29 January 2017, AAFES Loss Prevention (W.) notified this station via telephone of a Larceny of AAFES Property. Investigation by U-25 (S.) and U-23 (S} revealed that, upon reviewing closed circuit television (CCTV), observed that on 27 January 2017, the applicant placed Property #1 into Vehicle #1 and left the business without rendering proper payment. At 1630 Hours. 29 January 2017, he was apprehended by Military Police and transported to this station, where he was advised of his legal rights, which he waived, denying taking Property #1. He was further processed, issued a Notice of Suspended AAFES Privileges and released to his unit (V.) on a DD Form 2708. Property #1 was unrecoverable and was not returned to AAFES. Total amount of theft is $93.56 US dollars. 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, dated 2 February 2017, 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. The applicant was diagnosed with: Mild concussion history resulted in TBI treatment completed by 24 October 2016. The applicant provided a copy of his personal medical records from Kaiser Permanente, dated 25 September 2018, reflecting the applicant was diagnosed with PTSD. Struggling with symptoms affiliated with depression and anxiety due to experiences while in the military. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; Self Authored statement; Two Letters of Recommendation; ERB; Military Personnel Records; Fire and Emergency Service Certification Program Certificates and Post Service Medical Records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he is working as a plumber technician and striving to become an emergency medical technician and firefighter. 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 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. DISCUSSION 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 635-5, Separation 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 has service connected PTSD. The applicant contends he was diagnosed with an adjustment disorder with anxiety by Kaiser Permanente. The applicant provided several medical documents indicating he was diagnosed with an adjustment disorder with anxiety and prescribed medication. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 24 October 2016, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does indicate a mild concussion history resulted in TBI treatment. The MSE was considered by the separation authority. The post- service record dated 25 September 2018, reflects the applicant was diagnosis with PTSD. The applicant contends he did not receive the help he needed and he was told he would receive an honorable discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends he is doing well post service. 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 after leaving 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 the applicant's DOD and VA health records along with post-service civilian documentation listing a PTSD diagnosis, as well as applicant assertions of PTSD and TBI. PTSD and TBI each may excuse or mitigate the applicant’s basis of separation. (2) Did the condition exist or experience occur during military service? Yes. There was evidence presented to the Board that PTSD and TBI occurred during service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board’s Medical Advisor applied liberal consideration to all the evidence before the Board, and opined that the DoD medical records of TBI, civilian PTSD diagnosis and applicant’s assertions of both TBI and PTSD do not excuse or mitigate the applicant’s larceny of fuel because the preponderance of the evidence supports the opine that the applicant’s larceny was premeditated action in exchange for personal financial gain and therefore not related to the applicant’s TBI and PTSD. Specifically, the Board’s Medical Advisor could not find sufficient evidence that the applicant’s TBI or PTSD would excuse or mitigate the applicant’s basis for separation. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the medical advisor and voted that there were no mitigating BH conditions or experiences to outweigh the applicant’s basis for separation. b. Response to Contention(s): (1) The applicant contends he has service connected PTSD. The Board liberally considered this contention but concluded that the applicant’s PTSD would not mitigate applicant’s larceny that was a basis for his separation. (2) The applicant contends he did not receive the help he needed. The Board concluded that the evidence did not support the applicant’s contention regarding requesting help, nor any nexus between the contended help he needed with the numerous FTRs and larceny offense. (3) The applicant contends good service. The record confirms 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 stealing fuel and not showing up to work on time on numerous occasions, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends he is doing well post service. 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 TBI and PTSD did not excuse or mitigate the offenses of stealing gas. 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 AR20210003403 1