1. Applicant's Name: a. Application Date: 30 August 2020 b. Date Received: 2 September 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 under honorable conditions (general). The applicant requests an upgrade to honorable and a narrative reason change. b. The applicant states, in effect that when they were in the Army they were being harassed and when they tried to tell leaderships things got worse for them, they asked to be moved to another unit and their request was denied because they were flagged due to NJP. c. When they first got to their unit everything was good until SGT R came from another unit and started problems with them their first day there. They told their first sergeant what was happening, and nothing was done. SGT R made them clean the hallways with a sponge and a toothbrush, when the applicant relayed to SGT R that their arm was tired due to a shoulder injury, SGT R started yelling at them and told them to keep cleaning at which they walked away to find assistance with the harassment, SGT R continued the harassment. They applicant went to mental health because no one was helping them with the harassment they were receiving. d. Mental health was trying to get them relieved of their duties with a failure to adapt honorable discharge, however when they gave their first sergeant the paperwork, first sergeant ripped the documents and told them their term was nearly over and that they did not need to get out the army. They received an article 15, for lashing out to SGT R for the harassment. The applicant received surgery on their shoulder and ultimately, they were moved to another company. When they arrived at the new company a friend of SGT R, SPC M, started harassing them as well, the applicant was sent back to their previous unit and received another Article 15 once their terminal leave for their shoulder ended. The applicant told the surgeon who did their surgery about the NJP, and the surgeon gave them a specific profile that would prevent them from doing the extra duty work, even though they had a profile they were still made to do extra duty work that went against their profile and further damaged their shoulder. e. They still have problems with their shoulder today, they were chaptered out when they did not have much time left in their contract, the harassers made them feel like committing suicide and or going AWOL. Life after the army they feel better about themselves, however they have major depression from what happened to them and will now have to have another surgery on their shoulder due to the neglect of their profile and safety. They were going too mental health, telling them about the harassment and what they were doing to them, they almost committed suicide multiple times and thought about going AWOL, but they did not, please help them. f. Board Type and Decision: In a records review conducted on 29 November 2023, and by a 3-2 vote, the Board determined the discharge is inequitable. Accordingly, 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 also voted no change to the RE code. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, CH 14-12c / JKQ / RE-3 / Under Honorable Conditions (General) b. Date of Discharge: 27 August 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 July 2019 (2) Basis for Separation: Did not meet grooming standards, left place of duty, failure to report to place of duty, disrespectful towards non-commissioned officers, and made false official statements. (3) Recommended Characterization: General (under honorable conditions) (4) Legal Consultation Date: The applicant waived legal counsel on 2 July 2019. (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 17 July 2019 / General (under honorable conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 September 2017 / 3 years, 27 weeks b. Age at Enlistment / Education / GT Score: 19 / High School / 87 c. Highest Grade Achieved / MOS / Total Service: E-1 / 91B10 Wheeled Vehicle Mechanic / 1 year, 11 months, 23 days. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/ Reenlistment Document provides that the applicant enlisted in the United States Army Reserve at the rank of private (E-1) with an active duty obligation of 3 years and 27 weeks on 13 July 2017. (2) Four Developmental Counseling Forms provides the applicant was counseled three times on 19 November 2018 and counseled on 20 November 2018. The applicant showed up to accountability formation unshaven, they left physical training early due to a bloody nose, and during a counseling session they left and stated "I'm not signing this, I'm being picked on... I'm going to behavioral health". During physical training on 20 November, SGT R approached the applicant and said " [ applicant] do something" the applicant respond M____ F____ don't come at me like that" they were counseled by SGT R for disrespecting a noncommissioned officer. (3) A Developmental Counseling Form provides that on 12 December 2018 the applicant was counseled by SGT R, for their conduct. SGT R told the applicant to clean the bay at 1535, the applicant stated, " I'm not doing that because my NCO told me to leave at 1545 and you are not my NCO" . SGT R , then told the applicant they would take them to the barracks to change for remedial PT at which the applicant responded, " I'm not doing that either and you need to get the F___ out of my face or I will F___ you up". (4) A Record of Proceedings UCMJ document, dated 6 March 2019 provides the applicant received a NJP for violating one specification each of violating Articles 86, 92 and 107, and four specifications of Article 91 of the UCMJ. Punishment consisted of forfeiture of pay; $840 for two months, suspended, to be automatically remitted if not vacated on or before 6 September 2019; and extra duty and post restriction for 45 days and an oral reprimand. (5) A Report of Medical Examination document dated 11 March 2019, provides the applicant received a separation medical examination and was medically cleared. (6) On 29 March 2019, the applicant was counseled informing them that they were being recommended for separation based off their previous patterns of misconduct. (7) On 8 April 2019 the applicant was counseled for failure to report at 0900 and for leaving PT formation for a medical appointment that was 1040 and not at 0800; the time they told leadership. (8) On 11 April 2019 the applicant was counseled for events that took place the day prior, they were ordered by SPC M to report back to the motor pool, they disobeyed those orders and threatened SPC M by saying " I'm going to break your back". (9) A Military Protective Order dated 11 April 2019 provides the applicant was restrained from initiating any contact or communication with SPC M and to remain at least 100 feet away. The terms of the order were effective until 11 April 2029 unless rescinded, modified or extended by the commanding officer. (10) A Report of Mental Status Evaluation document dated 30 April 2019, provides that the applicant received a mental health evaluation that psychologically cleared them for administrative action the command considered necessary. (11) A Record of Proceedings UCMJ document, dated 16 May 2019 provides the applicant received a NJP for violating three specifications of Article 86 and one specification of Article 115 of the UCMJ. Punishment consisted of forfeiture of pay; $840 for two months, suspended, to be automatically remitted if not vacated on or before 12 November 2019, and extra duty and post restriction for 45 days. (12) On 1 July 2019 the applicant's immediate commander notified them of their intent to separate them under the provisions of AR 635-200, Chapter 14-12c (commission of a serious offense) with a recommended characterization of service of General (under honorable conditions). The applicant acknowledged the commander's notification and basis for separation, their available rights, to include the right to consult with counsel prior to submitting their election of rights. On 2 July 2019 the applicant declined to consult with a military attorney. (13) A memorandum, 1ST Armored Division Artillery, 1ST Armored Division, Fort Bliss, Texas subject: Commanders Report - Proposed Separation under AR 635-200, Chapter 14- 12c, commission of a serious offense dated 02 July 2019, provides the applicant's immediate commander stated, " SM has not been able to adapt to the military lifestyle, SM does not possess the potential to continue service". (14) On 17 July 2019 the appropriate authority approved the separation and directed the applicant be separated with a General (under honorable conditions) characterization of service. (15) A DD Form 214 shows on 27 August 2019 the applicant was discharged accordingly, they completed total active service of 1 year , 11 months and 23 days. i. Lost Time / Mode of Return: N/a j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Discharge Review) application, DD Form 149 (Correction of Military Record) application that provides they want their DD Form 214 updated to say they were discharged for mental issues with a honorable characterization of service, a self-authored statement, 2 copies of their DD Form 214, their complete Administrative Separation packet to included copies of their NJP, their ERB, enlistment contract, SGLI, and a copy of their record of emergency data document. 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of 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 provides the authorized types of characterization of service or description of separation. (1) An Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) A General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (3) An Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (4) Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated. In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for the following reasons. Rehabilitative requirements are not required for individuals separated under Chapter 14-12c. * Involuntary separation due to parenthood * Personality disorder * Other designated physical or mental conditions * Entry-level performance and conduct * Unsatisfactory performance * Minor disciplinary infractions or a pattern of misconduct * Failure to meet body fat standards (5) 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. 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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: * 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 * 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 * 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 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable. The applicant's DD Form 214 provides that the applicant received a General (under honorable conditions) characterization of service, rather than an under other than honorable conditions (UOTCH) discharge which is normally considered appropriate for a soldier discharged for serious misconduct. b. Based on available evidence the applicant enlisted In the army at the age 19 at some point they injured their shoulder and after 1 year, 2 months and 14 days in the army the received their first negative counseling statement. The applicant accepted NJP on two occasions for various misconduct; failure to report, leaving the place of duty and disrespecting a non-commission officer. They were processed for administrative separation; the initiating commander stated the applicant had not been able to adapt to the military lifestyle. c. The applicant was notified of the intent to separate them for serious misconduct and acknowledged they understood the basis for separation and under the provisions AR 635-200, CH 14-12c. They applicant waived consulting with legal counsel and received the required health and mental health separation examination which cleared him for separation proceedings. d. Chapter 14 establishes policy and prescribes procedures for members being separated 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: the applicant was diagnosed in-service with Adjustment Disorder and Unspecified Personality Disorder with Antisocial and Borderline traits. Applicant is service connected for PTSD due to a Basic Training event. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with Adjustment Disorder and Unspecified Personality Disorder with Antisocial and Borderline traits. Applicant is service connected for PTSD due to a Basic Training event. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that while it is more likely than not the applicant's misconduct is due to diagnosed Personality Disorder with support starting pre-enlistment, the VA has service connected the applicant for PTSD. Accordingly, liberal consideration compels an upgrade. (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/did not outweigh the basis of separation. b. Response to Contentions: (1) The applicant contends they were being harassed by soldiers in their organization with one of them being a squad leader (SGT R), they tried to get out of the army with a failure to adapt chapter before the harassment escalated. Evidence provides the applicant was counseled and received a non-judicial punishment for interactions they had with their alleged harasser, and their immediate commander the initiated their separation stated the applicant had not been able to adapt to the military lifestyle and did not possess the potential to continue service. 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 in-service diagnosis with Adjustment Disorder and Unspecified Personality Disorder with Antisocial and Borderline traits fully outweighing the applicant's basis for separation. (2) The applicant contends they were forced to perform extra duty as punished of the NJP while on profile, evidence provides the applicant was on extra duty for a total of 90 days in 2019. 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 in-service diagnosis with Adjustment Disorder and Unspecified Personality Disorder with Antisocial and Borderline traits fully outweighing the applicant's basis for separation. (3) The applicant contends they were harassed by SPC M, evidence provides although not a non-commissioned officer SPC M had the authority to give orders to the applicant. A military protective order was put In place after the applicant threatened SPC M. 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 in-service diagnosis with Adjustment Disorder and Unspecified Personality Disorder with Antisocial and Borderline traits fully outweighing the applicant's basis for separation. c. The Board determined the discharge is inequitable. Accordingly, 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 also voted no change to the RE code. d. 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 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 concurred with the conclusion of the medical advising official that the applicant's Personality Disorder and PTSD does mitigate applicant's misconduct (did not meet grooming standards, left place of duty, failure to report to place of duty, disrespectful towards non-commissioned officers, and made false official statements). 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: 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 AR20210009734 1