1. Applicant’s Name: a. Application Date: 15 October 2020 b. Date Received: 20 October 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is General (Under Honorable Conditions). The applicant requests an upgrade to Honorable and a narrative reason change, along with upgrading their separation and reentry codes. b. The applicant states, in effect, the discharge is inequitable due to mistreatment by leadership and other Soldiers. After separation, they were rated 100 percent service-connected disability by the VA. The applicant states the discharge is improper due to the failure to diagnose their mental health issues, which directly resulted in the behavior that caused their discharge. Their disabilities makes working nearly impossible and with the support of friends who are fellow veterans, they finally felt the need to request the upgrade. They are now rated as a 100% disabled veteran and believe they can demonstrate how their injuries should mitigate other factors and allow for the upgraded discharge. During initial training, they were injured, which would be the first of 2 injuries that caused their conditions. While trying to recover from this injury, they were constantly abused for having been on crutches or having been unable to keep up with the pace of training. Eventually, this led to them being recycled to another training class. The applicant honestly does not know how they managed getting through basic combat training (BCT) or advanced individual training (AIT) given the amount of pain they were in. Due to this slowing them down, the berating and harassment continued. (1) After arriving at their first unit, Fort Hood, they were involved in a motor vehicle accident. This jarring accident led to further injury to their lower body and back and ever since that day, they have had pain and numbness nearly constantly. Everyone from the squad leaders to the company commanders accused them of malingering. Their most used evidence having been they did not always favor the same side. Now, they know this was due to the nerve damage on both sides of their body. The applicant was hurt the most by being looked down on by the people they respected and wanted to emulate. Their struggle in PT and often just getting around, made them a target for constant ridicule, they became depressed and at some points contemplated suicide and thankfully, they never made this an acceptable decision for themselves. (2) The applicant states it is important to point out, until twelve years after their discharge, they had no idea what caused their constant pain. The focal point of their pain was their hips, knees, and feet. The doctors looked at them but only found mild issues and so the belief became the applicant was lying. They now know the pain was coming from a very real place, their spine, and their nerves. Every day the applicant wishes they would have figured this out while they were still serving; the mental torture of not knowing why they were hurting, the mocking and abuse, and the depression in which it caused, still haunts them today. (3) The applicant struggled for a very long time after their discharge, and often still do but they have made huge steps forward in their life. They have several years of college completed with a 3.6 GPA. They have 2 wonderful kids and a spouse who takes care of them, and the issues caused by their disabilities in which, some of those disabilities became very evident while they were serving. The depression effects caused them to make a series of poor decisions. (4) The evidence provides their injuries were very real and they were not malingering. Despite their constant requests for aid, they were harassed and abused, generally mistreated, and this led to Major Depressive Disorder. Hallmarks of this condition are trouble with memory (their spouse continues to help them with), Anxiety in which their medication helps control, and most important to why they were discharged, trouble maintaining relationships, and issues with judgement. Their depressive condition, coupled with the constant pain and harassments, and poor judgement, led to their discharge. (5) The applicant contends they would have still been in the Army today, had their medical issues been corrected, their depression resolved, and the harassment been prevented. They will admit they made some poor decisions but as they were struggling with these conditions, brought on my injury in service, they do not feel the discharge accurately reflects their service. The applicant thanks the Board for taking the time to review this letter and its associated documents and for kind consideration. c. Board Type and Decision: In a records review conducted on 15 November 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 19 January 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 December 2005 (2) Basis for Separation: On 2 May 2005, the applicant assaulted a soldier; on 25 October 2005, they disrespected a superior commissioned officer; on 18 August 2005, they failed to report (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 December 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 5 January 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 September 2004 / 4 years and 16 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-2 / 88M1O Motor Transport Operator / 10 months d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 23 July 2004, the applicant enlisted in the United States Army Reserve’s Delayed Entry Program; on 2 September 2004, they enlisted in the Regular Army for 4 years and 16 weeks as a PVT. (2) The Enlisted Records Brief provides the applicant was married and was promoted to PV2 on 2 March 2005 and demoted to PVT on 19 May 2005. (3) On 19 May 2005, the applicant accepted nonjudicial punishment (NJP) in violation of Article 128, UCMJ, at Fort Bliss, TX, on 2 May 2005, the applicant assaulted PVT by striking at them with an M16A2 rifle. The applicant was sentenced to reduction to PVT; forfeiture of $288; extra duty for 14 days; and restriction for 14 days; they did not appeal. (4) On 1 December 2005, the applicant received a Suspend Favorable Personnel Actions (FLAG) for field-initiated elimination (BA). (5) On 16 December 2005, the applicant accepted nonjudicial punishment (NJP) in violation of Article 89, UCMJ, for behaving disrespectfully towards CPT, their superior commissioned officer, by saying “F__k this place” and “F__k you all.” They were sentenced to forfeiture of $617 per month for two months, suspended to be automatically remitted if not vacated by 16 February 2006; extra duty for 45 days; restriction for 45 days, suspended to be automatically remitted if not vacate by 16 February 2006; they did not appeal. (6) On 28 December 2005, the commander notified the applicant of their intent to initiate separation proceedings under the provisions of AR 635-200, Chapter 14-12b, Pattern of Misconduct. The applicant acknowledged receipt, received legal consultation, and did not submit a statement on their behalf. Defense counsel acknowledged the applicant’s election of rights. (7) On 5 January 2006, the appropriate authority approved the separation and directed the applicant be discharged with a General (Under Honorable Conditions) characterization of service. (8) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 19 January 2006, with 1 year, 4 months, and 18 days. The applicant has not completed their first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: (a) On 1 June 2020, the applicant received a Mental Disorders disability Benefits screening, indicating they were diagnosed with Major Depressive Disorder, moderate. They were previously diagnosed with TBI on 29 July 2019. Their occupational and social impairments are described as “with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” This new diagnosis is a progression of their original service connected BH diagnosis of “Other Specified Bipolar and Related Disorder.” (b) On 19 June 2020, the applicant’s VA Rating Decision changed from 90 percent to 100 percent effective 27 February 2019, for Major Depressive Disorder associated with Degenerative Disc Disease of the lumbar spine, left and right lower extremity Radiculopathy (Sciatic Nerve and Femoral Nerve) associated with Degenerative Disc Disease of the lumbar spine, Degenerative Disc Disorder of the lumbar spine, Benign Paroxysmal Positional Vertigo (BPPV), and Tinnitus. (c) On 17 October 2020, the applicant provided their VA Summary of Benefits Letter which indicates they are receiving 100 percent disability compensation; however, it does not detail the diagnoses/disabilities the applicant are being compensated for. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge); Self-Authored Statement; Veterans Affairs (VA) Rating Decision, VA Benefits Letter, and VA Service Letter 6. POST SERVICE ACCOMPLISHMENTS: The applicant has a supportive spouse and two children, and they have completed several years of college with a 3.6 GPA. 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), dated 25 September 2019, 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. Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (1) 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. (2) 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. (3) An Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (4) Chapter 1 (General provisions) sets policies, standards, and procedures to ensure readiness and competency of the force while providing for the orderly administrative separation of Soldiers, it provides in pertinent part: (a) When a separation is ordered, the approved proceedings will be sent to the commander who has the Soldier’s records for separation processing. The original copy of the proceedings will be filed in the permanent part of the Soldier’s official personnel record. (b) Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers. It is essential that Soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed. Except as otherwise indicated, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and ensure it occurs prior to initiating separation proceedings for reason to include Minor Disciplinary Infractions (14- 12a) or a Pattern of Misconduct (14-12b). (5) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when its clearly established that rehabilitation is impractical or unlikely to succeed. 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. Paragraph 14-12b (Pattern of Misconduct), stated, a pattern of misconduct consisting of one of the following – discreditable involvement with civil 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 UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. (6) Chapter 15 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 memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 14-12b, 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: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) 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. (3) 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. g. Title 38, U.S. Code, Sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered, medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by the agency. h. Manual for Courts-Martial (1984 Edition), United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good orders and discipline in the Armed Forces. (1) Article 89 (disrespect towards a superior commissioned officer) states in subparagraph, the maximum punishment consists of a bad conduct discharge, forfeiture of all pay and allowances per month for 1 year, and confinement for 1 year. (2) Article 128 (assault with a rifle) states in subparagraph, the maximum punishment consists of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to Honorable, in addition to a narrative reason change, and upgrading their separation and reenlistment codes. b. The available evidence provide the applicant enlisted in the RA as a PVT and promoted to PV2. The applicant accepted NJP twice for disrespecting a superior commissioned officer and for assaulting another Soldier with their rifle. They were demoted to PVT and processed for involuntary separation for patterns of misconduct. The applicant consulted with defense counsel prior to their separation and did not submit a statement on their behalf. c. Chapter 14 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. d. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board’s statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching is determination, the Board shall consider the applicant’s petition, available records and/or submitted documents in support of the petition. 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, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: The applicant was diagnosed in-service with Personality Disorder and Adjustment Disorder. The applicant is service connected for MDD, present 10 years' post-service, with additional diagnosis of Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with Personality Disorder and Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that MDD is not mitigating as the VA has determined it was not present in-service. Additionally, assaulting another Soldier with a weapon is not associated with depressive symptoms and in-service providers determined a Personality Disorder more likely than not drove the additional disrespect and FTRs. Although a Personality Disorder provides context, it is not mitigating as the individual is still able to make conscious choices understanding right from wrong and consequences. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Personality Disorder and Adjustment Disorder outweighed the basis for applicant’s separation – disrespect, FTR and assault – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends, despite their constant requests for aid, they were harassed and abused, generally mistreated, and this led to Major Depressive Disorder. Hallmarks of this condition are trouble with memory, Anxiety, trouble maintaining relationships, and issues with judgement. Their depressive condition, coupled with the constant pain and harassment, and poor judgement, led to their discharge. The Board considered this condition and the medical advisor advised that the MDD was not present in service, and additionally assaulting another Soldier was not associated with depressive symptoms and therefore not mitigating, therefore the Board determined the applicant’s discharge was proper and equitable. (2) The applicant contends, they were subsequently rated 100 percent service- connected disability by the VA. The discharge is improper due to the failure to diagnose mental health issues which directly resulted in the behavior that led to their discharge. The Board considered this contention, along with the applicant’s file and after liberally considering all the evidence, including the VA determination, the Board found that the applicant had unmitigated basis for separation. (3) The applicant contends they would have still been in the Army today, had their medical issues been corrected, their depression resolved, and the harassment been prevented. The Board considered this contention and found the applicant to have no mitigating behavioral health diagnoses that could have outweighed the applicant’s misconduct of disrespect, FTR and assault. 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. Therefore, the Board determined the discharge is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 of all the evidence before the Board, the applicant’s Personality Disorder and Adjustment Disorder did not excuse or mitigate the offenses of disrespect, FTR and assault. 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. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below the level of meritorious service warranted for an upgrade to an Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 / 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 AR20210006720 1