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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, he was diagnosed with a mental health illness of sufficient severity. He was placed on a Multi-D high risk list, received treatment, and underwent an impartial medical evaluation board assessment, which confirmed his diagnosis. The impartial medical Review C&P Examinations predates his separation. He was under medical treatment for those behavioral health conditions. In a records review conducted on 2 December 2021, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of Adjustment Disorder with Mixed Anxiety, Depressed Mood, Mixed Disturbance of Emotions and Conduct, Adjustment Insomnia, Alcohol Abuse, Alcohol Dependence, Unspecified Anxiety Disorder, and Nicotine Dependence). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 21 February 2020 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 5 February 2020, the applicant was charged with: Charge I: Violating Article 90, UCMJ: Four Specifications of willfully disobeying a lawful command by his superior commissioned officer on or about 24 and 25 December 2019 and 26 January 2020 Charge II: Violating Article 91, UCMJ: Five Specifications of being disrespectful in language on or about 25 December 2019 and on 26 January 2020. Two Specifications of disobeying a lawful order from a noncommissioned officer on or about 25 December 2019 and on 26 January 2020. Charge III: Violating Article 115, UCMJ: One Specification of wrongfully communicating a threat on or about 26 January 2020. Charge IV: Violating Article 128, UCMJ: One Specification of unlawfully poke another Soldier in the chest with his hand on or about 24 December 2019. Charge V: Violating Article 134, UCMJ: One Specification of wrongfully engaging in extramarital conduct on or about 30 July 2019. (2) Legal Consultation Date: 7 February 2020 (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: NIF / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2017 / 6 years b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 91J10, Quartermaster and Chemical Equipment Repair / 2 years, 9 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Mental Status Evaluation, dated 18 October 2019, reflects the applicant shows no evidence of an impaired behavioral health condition. And is cleared for advanced military training. It also states the applicant has no duty limitations due to behavioral health reasons. CG Article 15, dated 16 September 2019, for two counts of being disrespectful in language to a noncommissioned office and one count of being drunk and disorderly on or about 20 August 2019. The punishment consisted of a reduction to E-3; forfeiture of $491 (suspended); and, extra duty and restriction for 14 days. Record of Supplementary Action Under Article 15, UCMJ, dated 31 September 2019, reflects the suspended portion of the punishment imposed on 16 September 2019, was vacated for: Article 86, failure to go at the time prescribed to his appointed place of duty. Seven Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Impartial Medical Review 22 January 2019 reflects the applicant's diagnoses of acute Adjustment Disorder with mixed anxiety and depressed mood and Alcohol use disorder (mild). These conditions are dealt with through administrative channels rather than as a physical illnesses or medical disabilities. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Medical Evaluation Board (MEB) appeal memo; Medical Review; Soldier's Witness letter; Health Record. 6. POST SERVICE ACCOMPLISHMENTS: None provided with 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) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (4) Chapter 18 stipulates that Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 shall be separated under this provision when it is the sole basis for separation. The regulation provides that the Soldier must be given a reasonable opportunity to comply with and meet the body fat standards. The regulation also provides that if no medical condition exists and if the individual fails to make satisfactory progress in the program after a period of six months, then initiation of separation or imposition of a bar to reenlistment is required. (5) Paragraph 18-2, the service of those separated per this chapter will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in entry- level status 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 "JCR" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 18, weight control failure. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends he suffers from acute Adjustment Disorder with mixed anxiety, depressed mood and Alcohol use disorder (mild). The applicant's AMHRR contains no documentation of mental illness. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 18 October 2019, which indicates the applicant was mentally responsible. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court- martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records and states while on active duty, applicant was diagnosed with an Adjustment Disorder and Unspecified Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor arrived at this finding based upon while on active duty, applicant was diagnosed with an Adjustment Disorder and Unspecified Anxiety Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined that while the applicant was diagnosed with Adjustment DO while in the military, review of his medical records indicates that this diagnosis was unrelated to his misconduct. He was also diagnosed with Unspecified Anxiety Disorder. Review of his medical records indicates that his anxiety symptoms likely developed as a consequence of his heavy alcohol consumption and not vice versa. Overall, his medical records indicate that his primary BH issue was Alcohol Dependence. Although he was diagnosed post-service by the VA with Major Depressive Disorder, he is not service connected for the condition and there is no evidence that it was present at the time of service. Therefore, the Board's Medical Advisor could not find any medical condition that actually mitigated the basis for applicant's separation. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's medical conditions do not outweigh the basis for separation. b. Response to Contention(s): (1) The applicant contends he has a mental illness. The Board determined that this contention was valid but did not mitigate the basis for separation. (2) The applicant contends a medical evaluation board was under process at the time of the separation proceedings. Applicant underwent an MEB prior to discharge, including a BH evaluation. His Adjustment Disorder met retention standards, and he was found psychiatrically fit for duty. The Board considered, but found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including extramarital contact, was not sufficiently meritorious to warrant an honorable discharge. c. The Board determined the characterization of service was inequitable based on the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of Adjustment Disorder with Mixed Anxiety, Depressed Mood, Mixed Disturbance of Emotions and Conduct, Adjustment Insomnia, Alcohol Abuse, Alcohol Dependence, Unspecified Anxiety Disorder, and Nicotine Dependence). Specifically, the Board concluded that the alcohol dependence downwardly spiraled during a brief period of time that led to much of his misconduct that was the basis for his separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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 to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant's misconduct of disobeying a lawful command, disrespectful in language, wrongfully communicating a threat, and unlawfully poking another Soldier in the chest may have been prevented by early intervention, including SUDCC. However, the Board found the extramarital wrongful conduct equitable as a basis for separation. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20210003409 4