1. Applicant's Name: a. Application Date: 11 December 2020 b. Date Received: 15 December 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 and a narrative reason for separation. (2) The applicant seeks relief stating they are not making excuses as they were given a discharge for a pattern of misconduct due to three reasons. They had marital problems, and they are no longer married. They had problems pay their bills on time and managing their finances and they have since improved. During an Army Physical Fitness Test (APFT), they turned around 50 feet early during a 2-mile run. The next APFT they passed; however, that did not matter as they were discharged. (3) The applicant has rectified their deficiencies. They are a law abiding, upstanding citizen. They served two tours of duty in Iraq, and they feel that they deserve an honorable discharge. They would even want to reenlist if they were able to, but with their general (under honorable conditions) discharge they can't. b. Board Type and Decision: In a records review conducted on 1 December 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's quality of service, to include combat deployments, that outweighs the applicant's failure to maintain finances and civilian conviction for shoplifting, and PTSD diagnosis mitigating multiple FTRs. 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. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to 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 Board determined the reentry code was proper and equitable and voted not to change it. 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: 27 April 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 February 2010 (2) Basis for Separation: The applicant was informed of the following reasons: multiple occurrences of Failure to Report, two occurrences of failure to manage financial obligations, and a pending civil conviction for shoplifting. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 23 February 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 March 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 May 2008 / 6 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-4 / 94M10, Radar Repairer / 5 years, 10 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (14 February 2006 - 13 February 2007 and 1 March 2008 - 31 March 2009) f. Awards and Decorations: ICM-2CS, ARCOM-2, AGCM, NDSM, GWTSM, ASR, OSR-2 g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) Two Developmental Counseling Forms dated 14 August 2009 and 3 September 2009, reflects the applicant received developmental counseling for failure to manage financial responsibilities and failure to put forth effort during physical training. (2) A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 8 October 2009, reflects the applicant received nonjudicial punishment for, on or about 26 August 2009, was derelict in the performance of duties in that they willfully failed to run to the designated APFT 2-mile turn around point. Their punishment consisted of a reduction to the rank/grade private first class/E-3, forfeiture of $433.00 pay, extra duty 14 days and an oral reprimand. (3) Three Developmental Counseling Forms dated 24 November 2009 through 13 January 2010, reflects the applicant received developmental counseling for failure to keep their vehicle registered, apprehended by civil authorities for spouse's failure to pay for items at a civilian retail store, and for unsatisfactory living conditions. (4) A DA Form 3822 (Report of Mental Status Evaluation), dated 3 February 2009, reflects the applicant has the mental capacity to understand and participate in the proceedings, is mentally responsible and meets retention requirement. (a) The remarks section reflects the applicant has deployed twice but has no symptoms of post-traumatic stress disorder (PTSD) or other major illnesses. They have a history of adjustment disorder with mixed disturbance of emotions and conduct. Their behavior history includes larceny [shoplifting], failure to maintain financial responsibilities, failure to maintain quarters, and nonjudicial punishment for cheating [failure to complete] on an APFT. (b) Diagnoses reflects an Axis I (Psychiatric conditions) adjustment disorder with Mixed Disturbances of Emotions and Conduct and an Axis II (Personality & Intelligence disorders) Deferred, of Cluster B Personality Traits (Anti-Social). (c) Additional Comments reflects the service member is psychiatrically cleared for any administrative action deemed appropriate by command. The applicant is not suitable for continued access to classified material and any clearances should be rescinded. It is the professional opinion of the undersigned evaluator that this Soldier's problem will not respond to Command efforts at rehabilitation nor to any treatment methods currently available in any military mental health facility. After careful review of all clinical information, this Soldier's Axis I diagnosis is not unfitting. (5) A Developmental Counseling Form dated 10 February 2010, reflects the applicant received developmental counseling for failure to manage financial responsibilities. (6) A memorandum, Headquarters and Headquarters Battery, 4th Battalion, 42nd Field Artillery Regiment, subject: Separation under Army Regulation 635-200, Paragraph 14-12b, Patterns Misconduct, dated 20 February 2010, notified the applicant of initiating actions to separate them for a Pattern of Misconduct, for multiple occurrences of failure to report, two occurrences of failure to manage financial obligations and a pending civil conviction for shoplifting. That same day the applicant acknowledged the basis for the separation and of the rights available to them. (7) On 20 January 2010, the applicant's company commander submitted the request to separate the applicant prior to their expiration term of service, stating, all rehabilitative attempts have been exhausted and believe the applicant has no potential for useful service under conditions of full mobilization. (8) On 23 February 2010, 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. In their statement on their behalf, they state - (a) In the last 6 months, they have made some error in their personal life, despite this, they feel they should be able to stay in the Army. They have a perfect record for being on time for work, with many noncommissioned officers (NCO) and peers vouching for their hard work, attendance, and willingness to help. (b) They used to weigh 50 pounds heavier which has made physical training a huge issue, they can now actually meet standards. Their finances have been a big struggle and their Star card will be paid off with their income tax return. Any other financial problem will be resolved before their deployment. Their living conditions have been a bigger problem in the past and is spouse is in search of a therapist they feel comfortable with. If they are deployed their spouse will hire help. His vehicle is now registered, and they can drive it legally. As far as the shoplifting charges, they are not even being accused of doing it only that they knew of the shoplifting was going on. They are fighting this in court. Their mental evaluation states he can deploy with no problem. They have had many issues, but they feel they have resolved as many of them as they could and deserves a chance to stay in the U.S. Army and deploy. They take full responsibility for their errors and ask for forgiveness as well as mercy. (9) A memorandum, Headquarters, 1st Brigade Combat Team, 4th Infantry Division (Mechanized), subject: Separation under Army Regulation 635-200, Paragraph 14-12b, Patterns of Misconduct, [Applicant], 16 March 2010, the separation authority directed that the applicant's service will be characterized as General (Under Honorable Conditions) characterization of service. (10) On 27 April 2010, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 5 years, 10 months, and 11 days of net active service this period, completing their first full term of service; however, they completed 1 year, 11 months and 11 days of their reenlistment contractual obligation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE/BHE as described in previous paragraph 4h(4). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), with attached letter. 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 provides the applicant completed two 12-month deployments to Iraq. The record is void of indiscipline prior to the completion of their second deployment; however, approximately 4 months and 28 days upon their second redeployment whey they started to receive counseling for acts of misconduct that include shoplifting, failure to complete the APFT, cleanliness, and financial issues. While undergoing the separation process the applicant submitted a statement on their behalf, stating in effect, financial issues started upon redeployment and had taken the steps needed to start resolving the financial issues, they were having weight problems during the APFT that had since been resolved, their spouse was not happy and looking for a therapist but they had resolved the housing issues, as far as the applicant's mental health, had been advised they were mentally cleared to deploy again if the separation action was canceled. c. 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) completing 5 years, 10 months, and 11 days of their 6-year enlistment contractual obligation. d. 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. 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: PTSD (50% SC). [Note-both Adjustment DO diagnoses and the Anxiety DO NOS diagnosis are subsumed under the diagnosis of PTSD. ADHD is not considered a potentially mitigating condition as it is EPTS.] (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found service connection from the VA establishes that diagnosis of PTSD began during active 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, PTSD, which mitigates some of his misconduct. As there is an association between PTSD and avoidant behaviors, there is a nexus between his diagnosis of PTSD and his multiple FTRs. PTSD, however, does not mitigate failing to maintain finances or a pending civil conviction for shoplifting given that PTSD does not affect one's ability to distinguish right from wrong and act in accordance with the right. (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 PTSD fully outweighed the basis for applicant's separation - failing to maintain finances or a pending civil conviction for shoplifting - for the aforementioned reasons. The applicant's PTSD does mitigate the applicant's FTRs, but the full misconduct is not mitigated. b. Response to Contention(s): (1) The applicant contends they are not making excuses as they were given a discharge for a pattern of misconduct due to three reasons. They had marital problems, problems pay their bills on time and managing their finances and during an APFT, they turned around 50 feet early during a 2-mile run; however, on the next APFT they passed which did not matter as they were discharged. The Board considered this contention and determined reason for the applicant's separation and the character of service the applicant received upon separation were inequitable and voted to grant relief. (2) The applicant contends they have rectified their deficiencies. They are a law abiding, and an upstanding citizen. They served two tours of duty in Iraq, and they feel that they deserve an honorable discharge. The Board acknowledges the applicant's service and considered this contention, and determined reason for the applicant's separation and the character of service the applicant received upon separation were inequitable and voted to grant relief. c. The Board determined the discharge is inequitable based on the applicant's quality of service, to include combat deployments, that outweighs the applicant's failure to maintain finances and civilian conviction for shoplifting, and PTSD diagnosis mitigating multiple FTRs. 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. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to 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 Board determined the reentry code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's quality of service, to include combat deployments, that outweighs the applicant's failure to maintain finances and civilian conviction for shoplifting, and PTSD diagnosis mitigating multiple FTRs. 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. Thus, the prior characterization is no longer appropriate. (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: 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 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 AR20210008661 1