1. Applicant's Name: a. Application Date: 8 October 2020 b. Date Received: 19 November 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable, change in separation code, and a narrative reason change. (2) The applicant seeks relief stating they were not in a good space mentally, they have made mistakes, but they don't want a negative association toward their military career. As an Operation Iraqi Freedom veteran, they want to be proud of their time served and to move forward. (3) After seeking mental health treatment, they have become a positive force in their community by volunteering. They have retained the values taught them by their service in the U.S. Army and they are not the same person who made those previous mistakes. An honorable discharge will truly be humbling. b. Board Type and Decision: In a records review conducted on 5 January 2024, and by a 5-0 vote, the Board determined the discharge is inequitable based the applicant's service, to include combat service and the circumstances surrounding the discharge (Major Depressive Disorder diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and change 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. The reentry code remains RE-3. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / Army Regulation 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 March 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 January 2011 (2) Basis for Separation: The applicant was informed of the following reasons. * willful disobedience of a direct order given by a noncommissioned officer (NCO) on 28 September 2010 * three occurrences of failure to report to designated place of duty at the appointed time on 16 September 2010, 25 September 2010, and 1 November 2010 * two occurrences of disrespect towards an NCO on 5 October 2010 and 10 December 2010 (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 January 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 14 January 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 September 2009 / 3 years, 24 weeks b. Age at Enlistment / Education / GT Score: 18 / Designation Occupational Program Certificate Job Corps / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 74D1O, Chemical Operations Specialist / 1 year, 5 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (31 July 2010 - 3 February 2011) f. Awards and Decorations: NDSM, GWTSM, ICM-CS, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Five Developmental Counseling Forms dated 18 August 2010 through 5 October 2010, reflects the applicant received developmental counseling for occurrence of misconduct consisting of failure to obey orders and regulations, failure to report on time, insubordinate conduct toward a noncommissioned officer (NCO), displaying disrespect and malingering. (2) A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 6 October 2010, reflects the applicant received nonjudicial punishment for, on or about 16 September 2010, without authority, failed to go at the time prescribed to their appointed please of duty. Their punishment consisted of a reduction to the rank/grade private two/E-2, forfeiture of $378.00 pay, extra duty 7 days and an oral reprimand. (3) Developmental Counseling Form dated 3 November 2010, reflects the applicant received developmental counseling for failure to report (4) A memorandum, Headquarters and Headquarters Detachment, Task Force 261 Multifunctional Medial Battalion, Joint Base Balad, Iraq, subject: Letter of Intent dated 13 November 2010, reflects the applicant's commander's intention to separate them in accordance with Army Regulation 635-200, paragraph 14-12b (Pattern of Misconduct) for failure to adapt to military environment. (5) A Report of Behavioral Health Evaluation), dated 17 November 2010, reflects the applicant fit for full duty, including deployment and meets medical retention requirements (i.e. does not qualify for a Medical Evaluation Board). (a) Diagnoses reflects an Axis I (Psychiatric conditions) of Depression and an Axis II (Personality & Intelligence disorders) of Cluster B Personality Traits. (b) Additional Comments reflects the service member is psychiatrically cleared for any administrative action deemed appropriate by command. The applicant self-referred for treatment in October 2010 and has been adherent with psychotherapy and medications. Encourage command discretion to allow probationary period of 2-3 months to see if behavioral symptoms improve with treatment before completing chapter separation. (6) A Developmental Counseling Form dated 14 December 2010, reflects the applicant received developmental counseling for insubordinate conduct toward an NCO. (7) A memorandum, Headquarters and Headquarters Detachment, Task Force 261 Multifunctional Medial Battalion, Joint Base Balad, Iraq, subject: Separation under Army Regulation 635-200, Chapter 14, Paragraph 14-12b, A Pattern Misconduct, [Applicant], dated 3 January 2011, notified the applicant of initiating actions to separate them for a Pattern of Misconduct, for misconduct described in previous paragraph 3c(2). That same day the applicant acknowledged the basis for the separation and of the right available to them. (8) On 5 January 2011, the applicant completed their election of rights signing they had been advised by counsel of the basis for their separation and its effects and of the rights available to them. They elected to submit a statement on their behalf stating, they are aware that they have made some mistakes as a Soldier, but they are asking for a chance to correct what they have done. They have enrolled in anger management class and working with a therapist at the Combat Stress Clinic. The applicant continues to state the reasons why they want to stay in the U.S. Army. (9) On 5 January 2011, the applicant's company commander submitted the request to separate the applicant prior to their expiration term of service, stating, the service member does not possess the standards and discipline to serve in the U.S. Army. (10) A memorandum, Headquarters, Task Force 807 Medical Command, subject: Separation under Army Regulation 635-200, Paragraph 14-12b, A Pattern of Misconduct, [Applicant], undated, the separation authority directed that the applicant be discharged and furnished a General (Under Honorable Conditions) characterization of service. (11) On 11 March 2011, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 1 years, 5 months, and 24 days of net active service this period and they have not completed their first full term of service of 4 years, 24 weeks. 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 (Application for the Review of Discharge from the Armed Forces of the United States), with attached letter * Department of Veterans Affairs Rating Decision, reflecting the applicant's 30-percent service connection disability of depression * Behavioral Health Service letter, reflecting their treatment starting on 4 April 2020 with current diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder * Disabled American Veterans letter, reflecting their request to the Discharge Review Board 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, , (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, Title 10, U.S. Code, Section 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 (DoD) 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; Title 10, U.S. Code, Section 1553; and DoD Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 July 2005, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (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) A Under Other Than Honorable Conditions Discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (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 Soldiers 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 it is clearly established that rehabilitation is impractical or unlikely to succeed. 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) Paragraph 14-3 (Characterization of Service or Description of Separation) prescribed 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. (7) Chapter 15 (Secretarial Plenary Authority), currently in effect, 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, 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 DoD Instructions 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. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. b. The applicant's AMHRR reflects the received developmental counseling for multiple acts of misconduct, received nonjudicial punishment under the UCMJ and separated from the service The applicant's DD Form 214 indicates their discharge 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). 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. The applicant's Army Military Human Resource Record provides documentation of a diagnosis of depression during the applicant's military service. e. 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: Adjustment DO with depressed mood; Depressive DO, unspecified; MDD (50%SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found Adjustment DO with depressed mood and Depressive DO, unspecified occurred during service. VA service connection for MDD establishes it occurred or began during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, Major Depressive Disorder. As there is an association between MDD, irritability and anger, oppositionality and avoidant behaviors, there is a nexus between this condition and the applicant's offenses of disrespecting her NCO, disobeying an NCO and failing to report x 3. (Note-diagnoses of Adjustment DO with depressed mood and Depressive DO unspecified are subsumed under the diagnosis of MDD). (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 BH condition, Major Depressive Disorder outweighed the basis of separation. b. Prior Decisions Cited: None c. Response to Contentions: (1) The applicant contends they were not in a good space mentally, they have made mistakes, but they don't want a negative association toward their military career. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment DO with depressed mood fully outweighing the applicant's basis for separation. (2) The applicant contends after seeking mental health treatment, they have become a positive force in their community by volunteering. They have retained the values taught them by their service in the U.S. Army and they are not the same person who made those previous mistakes. An honorable discharge will truly be humbling. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Adjustment DO with depressed mood fully outweighing the applicant's basis for separation. d. The Board determined the discharge is inequitable based the applicant's service, to include combat service and the circumstances surrounding the discharge (Major Depressive Disorder diagnosis). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and change 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. The reentry code remains RE-3. e. Rationale for Decision: (1) The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guiance 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 concurred with the conclusion of the medical advising official that the applicant's Major Depressive Disorder mitigates the basis of separation and warrants a change to the characterization and narrative reason for separation. (2) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Major Depressive Disorder mitigated the applicant's misconduct o Thus the prior characterization is no longer appropriate. (3) 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. (4) 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: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20210008482 1