1. Applicant’s Name: a. Application Date: 11 April 2020 b. Date Received: 5 August 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. The applicant seeks relief contending, in effect, never receiving a rehabilitative transfer to another unit before being discharged. One of the charges against the applicant was never investigated, but was included in the applicant’s chapter paperwork. The applicant was accused of sexual harassment in 2006, by a civilian contract worker. The incident was never fully investigated and the applicant was never charged with any crime. The company commander, Captain C., included the incident in the chapter packet. After Hurricane Katrina in August 2005, the applicant was suffering from anxiety and depression because the applicant’s family lives on the Gulf Coast near New Orleans. The applicant had no way to contact the family to know whether the applicant’s loved ones were alive because the cell phone towers were down. The applicant indulged in heavy drinking at the young age of only 19 years old. b. Board Type and Decision: In a records review conducted on 21 July 2023, 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 November 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 October 2006 (2) Basis for Separation: The applicant was informed of the following reasons: On 19 August 2006, the applicant exposed the genitalia while in the K-Quad Dining Facility. On 23 March 2006, the applicant’s military equipment (TA-50) was unaccounted for and the applicant failed to obey an order by Sergeant (SGT) W. On 20 March 2006, the applicant showed up for duty without having a shaved face. On 11 March 2006, the applicant was operating a vehicle on post while on post driving privileges were suspended. On 8 and 9 March 2006, the applicant showed up to work in an incomplete duty uniform. On 25 February 2006, the applicant failed to report to 0630 formation at the Company area. On 5 December 2005, the applicant failed to report at 0730 work call formation. On 18 November 2005, the applicant wrongfully was in possession of alcohol while under the age of 21. On 22 September 2005, the applicant failed to report to 0600 work call. On 18 August 2005, the applicant failed to report for duty. On 27 July 2006, the applicant failed to report for 0630 physical training (PT) Formation. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 12 October 2006, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 October 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 August 2004 / 4 years b. Age at Enlistment / Education / GT Score: 18 / 4 Years College / 97 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Operations Specialist / 2 years, 2 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Hawaii / None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Commander’s Report, dated 12 October 2006, reflects the applicant was a rehabilitative transfer from 1st Battalion, 27th Infantry Regiment. Enlisted Record Brief, dated 17 November 2006, reflects the applicant was reassigned from 1st Battalion, 27th Infantry Regiment, to Headquarters and Headquarters Company, 225th Brigade Support Battalion, on 1 March 2006. Memorandum, subject: Request for Sanitized Report of Investigation (ROI) and/or Military Police Report (MPR) – Sexual Assault – [Applicant], dated 26 August 2021, reflects a search of the Army criminal file indexes revealed no records pertaining to the applicant. Numerous Developmental Counseling Forms, for, but not limited to: Sexual harassment; Failing to maintain personal equipment; Failing to follow orders; Failing to maintain appearance; Failing to follow orders; Revocation of on-post driving privileges; Improper wear and appearance of the food service uniform; Failing to report; Disobeying a noncommissioned officer; and Possessing alcohol when underage. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends anxiety and depression affected behavior and ultimately led to the discharge. The applicant’s AMHRR contains no documentation of an anxiety or depression diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation. The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends the sexual harassment complaint was never fully investigated. The AMHRR is void of a record of investigation. The Army Review Boards Agency requested a Sanitized Report of Investigation and/or Military Police Report, regarding sexual assault pertaining to the applicant, from the U.S. Army Crime Records Center (CICR). The CICR responded a search of the Army criminal file indexes revealed no records pertaining to the applicant. The applicant contends the command never transferred the applicant to another unit for rehabilitation. Army Regulation 635-200, paragraph 1-17, entitled counseling and rehabilitative requirements, states Soldiers not in training status will be locally reassigned at least once, with a minimum of three months of duty in each unit. Reassignment should be between battalion- sized units or between brigade-sized or larger units. The separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant’s AMHRR reflects in the Commander’s Report, the applicant was a rehabilitative transfer from another battalion to the separating battalion. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant’s 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 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/experiences: Mood DO NOS (70%SC). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that VA service connection establishes that the condition began during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, Mood DO NOS, which mitigates some of applicant’s misconduct. As there is an association between Mood DO and avoidant behaviors, there is a nexus between this diagnosis and the applicant’s history of multiple FTRs. As there is an association between Mood DO NOS and poor personal hygiene, there is a nexus between this condition and the applicant showing up for work in an incomplete uniform/not shaving. Mood DO NOS does not mitigate disobeying an order from an NCO, driving with suspended on -post driving privileges, failing to show up with TA-50, underage possession of alcohol, or exposing genitalia in the dining facility as this condition does not affect one’s memory or ability to distinguish right from wrong and act in accordance with the right. In the opinion of the BH advisor, the totality of the applicant’s misconduct outweighs any mitigation offered under liberal consideration. (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 Mood DO NOS outweighed the basis for the applicant’s separation – disobeying an order from an NCO, driving with suspended on -post driving privileges, failing to show up with TA-50, underage possession of alcohol or exposing genitalia in the dining facility – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends anxiety and depression affected behavior and ultimately led to the discharge. The Board considered this contention and determined the applicant’s anxiety and depression do not outweigh or mitigate applicant’s misconduct of disobeying an order from an NCO, driving with suspended on -post driving privileges, failing to show up with TA-50, and underage possession of alcohol or exposing genitalia in the dining facility. (2) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The Board considered this contention and determined that the applicant’s youth and immaturity did not outweigh the seriousness of the applicant’s disobeying an order from an NCO, driving with suspended on -post driving privileges, failing to show up with TA-50, and underage possession of alcohol or exposing genitalia in the dining facility. The Board also determined that there is insufficient evidence in the applicant’s official record or provided by the applicant that the applicant was not provided sufficient access to BH resources. Therefore, no change is warranted. (3) The applicant contends the sexual harassment complaint was never fully investigated. The Board considered this contention and determined 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. In light of the current evidence of record, the Board determined the applicant’s discharge was appropriate. (4) The applicant contends the command never transferred the applicant to another unit for rehabilitation. The Board considered this contention and determined the applicant’s Enlisted Record Brief, dated 17 November 2006, reflects the applicant was reassigned from 1st Battalion, 27th Infantry Regiment, to Headquarters and Headquarters Company, 225th Brigade Support Battalion, on 1 March 2006. Ultimately, 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 Mood disorder NOS did not excuse or mitigate the offenses of disobeying an order from an NCO, driving with suspended on -post driving privileges, failing to show up with TA-50, and underage possession of alcohol or exposing genitalia in the dining facility. 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, 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 AR20210007279 1