1. Applicant's Name: a. Application Date: 28 December 2020 b. Date Received: 12 January 2021 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 did not present any issues of propriety or equity for the Board's consideration, but states there is a desire to use veteran benefits to further education and support family. b. Board Type and Decision: In a records review conducted on 17 November 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge -MDD with Anxiety DO (Adjustment DO diagnosis is subsumed under MDD) and MST experience. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed the separation authority to AR 635- 200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. There is no change to the RE code. 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: 19 September 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 6 August 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to report to an appointment on 30 June 2014; made a derogatory remark towards another service member on 8 June 2014; entered false information on an in-processing sheet in April 2014; was disrespectful in deportment towards a senior noncommissioned officer (NCO) on 27 March 2014 and 28 January 2014; was disrespectful tin deportment towards a NCO on 22 January 2014; failed to report to accountability formation on 1 May 2013; drove without registration, insurance, and safety inspection on 14 April 2013; and failed to report to accountability formation on 4 and 9 April 2013. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 7 August 2014, the applicant waived the right to consult with counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 August 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 September 2012 / 3 years, 22 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Specialist / 2 years, 1 day d. Prior Service / Characterization: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) CG Article 15, 13 May 2014, reflects the applicant was disrespectful in deportment towards a noncommissioned officer on two separate occasions. The punishment consisted of reduction to private/E-2, suspended, to be automatically remitted if not vacated before 9 November 2014; forfeiture of $400 pay, suspended, to be automatically remitted if not vacated before 9 November 2014; and extra duty for 14 days. The suspension of the punishment of reduction to private/E-2 and forfeiture of $400 pay was vacated on 24 June 2014 due to the applicant wrongfully using provoking words towards another soldier. (2) CG Article 15, 29 July 2014, reflects the applicant made a derogatory remark towards another soldier on or about 8 June 2104. The punishment consisted of reduction to private/E-1 and forfeiture of $357 pay. (3) Mental Status Evaluation (MSE), 26 June 2014, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. (4) The applicant was counseled on multiple occasions for various forms of misconduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a letter from the Department of Veteran Affairs (VA), 24 November 2020, which reflects, in part, the applicant was granted service-connection for major depressive disorder with anxiety disorder, unspecified with a evaluation of 70-percent. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, VA Letter, numbers of character references. 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), 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. (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. (7) 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. 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's AMHRR reflects the applicant received a myriad of developmental counseling forms for various acts of misconduct and received punishment under the UCMJ. The applicant was subsequently separated from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of a Pattern of Misconduct, with a characterization of service of general (under honorable conditions). The applicant did not present any issues of propriety or equity for the Board's consideration, but states there is a desire to use veteran benefits to further education and support family. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 its 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/experiences: MDD with Anxiety DO (Adjustment DO diagnosis is subsumed under MDD); MST. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the MST occurred during military service. VA 70% service connection for MDD with Anxiety DO establishes it began during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, MDD with Anxiety DO, and a BH experience, MST, which mitigate most of his misconduct. As both conditions are associated with avoidance behavior, irritability and problems with authority figures, there is a nexus between these conditions and the offenses of multiple FTRs, multiple instances of disrespect towards NCOs and making a derogatory remark. Neither MDD with Anxiety DO nor MST mitigates the offenses of making a false official statement or driving without insurance, safety inspection or registration as neither condition affects one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation. b. Response to Contention(s): The applicant did not present any issues of propriety or equity for the Board's consideration, but states there is a desire to use veteran benefits to further education and support family. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare, or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge -MDD with Anxiety DO (Adjustment DO diagnosis is subsumed under MDD) and MST experience. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed the separation authority to AR 635- 200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. There is no change to the RE code. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service based on the following reasons: the Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board found sufficient evidence of an in-service mitigating factor (Length) and concurred with the conclusion of the medical advising official that the applicant's MDD and MST experience does mitigate the applicant's misconduct (FTRs; driving vehicle without license plate, registration, or valid state inspection; disrespect towards NCO; disrespect towards Senior NCO; falsifying information on a military document; derogatory remark). Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20210007929 1