1. Applicant's Name: a. Application Date: 1 May 2020 b. Date Received: 7 April 2021 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. (2) The applicant seeks relief stating, their Department of Veterans Affairs (VA) disability letter shows an honorable discharge and they kindly request for their DD Form 214 to reflect the same. b. Board Type and Decision: In a records review conducted on 20 October 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's Major Depressive Disorder and MST experience outweighing the applicant's misconduct. 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 Secretarial Authority, with a corresponding separation code of JFF. Based on the applicant's diagnosis, the Board determined a waiver should be required for reentry and voted the current reentry code of RE-3 proper and equitable and not to change it. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct, (Serious Offense) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 29 July 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 26 June 2019 (2) Basis for Separation: The applicant was informed of the following reasons: * on 26 February 2019, disobeyed a lawful general order by failing to shave * on 7 March 2019 and 18 July 2019, failed to go to appointed place of duty on five separate occasions * on 14 March 2019, disrespectful in deportment towards a superior noncommissioned officer (NCO) by hanging up the phone while speaking with that NCO * on 15 March 2019, disrespectful in language and deportment to a superior NCO on two occasions * on 21 March 2019, disobeyed a lawful order by not cleaning the staff duty perimeter (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 26 June 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 July 2019 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 June 2017 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: Private First Class/E-3 / 42A10, Human Resources Specialist / 2 years, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) DA Form 2671 (Record of Proceeding Under Article 15, Uniform Code of Military Justice (UCMJ)) dated 19 March 2019, reflects the applicant received nonjudicial punishment for failure to go at the time prescribed to their appointed place of duty on four occasions, on or about 26 October 2018, on our about 29 January 2019, on or about 4 February 2019, and 7 February 2019. Punishment consisted of a reduction to the rank/grade of private two/E-2, forfeiture of $439.00 pay, and extra duty and restriction for 14 days. (2) A memorandum, 42nd Military Police Brigade, subject: Report of Findings and Recommendations for Army Regulation 15-6 Investigation, Formal Sexual Harassment Complaint against [Applicant]) dated 10 April 2019, the Investigating Officer states - (a) After carefully considering the evidence, finds the applicant engaged in sexual harassment, was disrespectful towards a superior officer, insubordinate toward an NCO, and multiple instances of failure to obey a lawful order or regulation. (b) In view of the findings, recommend adverse administrative action or UCMJ action be imposed against the applicant. The applicant is a toxic Soldier with no military bearing. Their presence in any unit will be a detriment and a drain on leadership and productivity. Their actions have degraded the morale and good order and discipling of the unit. Further recommend separation action be taken immediately against the Soldier and the unit should efficiently out- process him from the military. This Soldier was passed between three different units and sections with a trail of no less than 25 event oriented counseling's and no consequences to show of it. This failure is believed to have emboldened the applicant to act out as much as they did because they had no fear of consequences. (3) A DA Form 3822 (Report of Mental Status Evaluation) dated 12 April 2019, reflects in - (a) Section II (Behavioral Health Disposition Determination) states Behavioral Health disorder present resulting in duty limitation that may impact deployability. (b) Section IV (Diagnoses) reflects the applicant's diagnoses of Unspecified Alcohol Related Disorder, Unspecified Stimulant Related Disorder; Other Substance Use Disorder; and Problem Related to Psychosocial Circumstances. (c) Section VI (Recommendations and Comments for Commander) the Behavioral Health Provider states from a behavioral health perspective, Service Member (SM) meets the medical fitness standards for retention as there is no indication of a medically boardable behavioral health disorder interfering with SM's ability to perform all assigned military duties without limitations. SM has been diagnosed with multiple substance use disorders, had on inpatient hospitalization which resulted in a temporary profile and is currently enrolled in ongoing Substance Use Disorder Clinical Care treatment as the SM awaits separation from the Army. (4) Twenty DA Forms 4856 (Developmental Counseling Form), dating from 7 March 2018 through 14 May 2019, reflects the applicant received developmental counseling for various acts of misconduct to include failure to be at appointed place of duty, speeding on post, failure to obey, disrespect to a noncommissioned officer (NCO), failure to follow instructions, lying to an NCO, failure to communicate, failure to follow chain of command, and failure to shave. (5) A DA Form 458 (Charge Sheet) dated 14 May 2019, reflects preferred charges were brought against the applicant, with the following charges - * one specification, Violation of Article 107, UCMJ (False Official Statements) * one specification, Violation of Article 89, UCMJ (Disrespect towards a Superior Officer or NCO) * four specifications, Violation of Article 91, UCMJ (Insubordinate Conduct) * two specifications, Violation of Article 92, UCMJ (Failure to Obey an Order) * four specifications, Violation of Article 86, UCMJ (Absence without Leave) (6) DD Form 2707-1 (Department of Defense (DoD) Report of Result of Trail) dated 30 May 2019, reflects the result of the applicant's summary court-martial trial with the findings of guilty of three specifications of disrespectful in language and deportment towards an NCO; two specifications of having knowledge of a lawful order, failed to obey the same; and four specifications of failure to go at the time prescribed to their appointed place of duty. (7) A DD Form 2707 (Confinement Order) dated 30 May 2019, reflects the applicant's sentence was adjudicated that day and the sentence consisted of a reduction in rank/grade to private/E-1 and 21 days of confinement. (8) A memorandum, 170th Military Police Company subject: Separation under Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense [Applicant], dated 26 June 2019, notified the applicant of the initiation of separation action for Commission of a Serious Offense. The reasons for the proposed action were for disobeying lawful orders, and disrespect. The applicant acknowledge receipt of notification of separation that same day. (9) A memorandum, 420th Military Police Brigade, subject: Separation under Army Regulation 635-200, Chapter 14-12c, Commission of a Serious Offense [Applicant], dated 15 July 2019, shows the approving authority directed the applicant will be separated from the Army prior to the expiration of current term of service and their service be characterized as General (Under Honorable Conditions). (10) On 29 July 2019, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 2 years and 25 days of net active service this period. Block 18 (Remarks) reflects the applicant has not completed first full term of service of 4 years and 21 weeks contractual obligation. i. Lost Time / Mode of Return: 17 days (Confinement, 30 May 2019 - 15 June 2019) j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE/BHE as described in previous paragraph 4h(3). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, VA 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, 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 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 DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 19 December 2016, provided the basic authority for the separation of enlisted personnel. (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 form 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 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. 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. Paragraph 14-12c (Commission of a Service Offense), stated 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. (5) 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, 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 DoD Instruction 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. Standard of Review. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. Review of the record provides the applicant demonstrated a multitude of indiscipline and misconduct issues. The indiscipline and misconduct continued despite the rehabilitative efforts with performance counseling and transfer to other units. The applicant received a general discharge rather than a discharge under other than honorable conditions, which is normally considered appropriate. 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. e. Published DoD 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: the applicant held in-service diagnoses of Anxiety and Adjustment Disorder with treatment for substance use. Post-service, he is service connected for Major Depressive Disorder (MDD) with reported MST. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held in-service diagnoses of Anxiety and Adjustment Disorder with treatment for substance use. At the end of service, he reported MST. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given nexus between trauma, difficulty with authority, avoidance, and substance use, the basis for separation is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's MDD and MST experience outweighed the disobeying a lawful general order, FTRs, disrespectful in deportment towards a superior noncommissioned officer basis for separation for the aforementioned reasons. b. Response to Contention(s): The applicant contends their VA disability letter shows an honorable discharge and they kindly request for their DD Form 214 to reflect the same. Disabilities which occur or which worsen after a Soldier is separated are treated by and compensated for by the VA. Any claims or issues concerning treatment or compensation for service-connected disabilities should be addressed to that Agency. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Board considered this contention and 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 applicant's Major Depressive Disorder and MST experience outweighing the applicant's misconduct. 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 Secretarial Authority, with a corresponding separation code of JFF. Based on the applicant's diagnosis the Board determined a waiver should be required for reentry and voted the current reentry code of RE-3 proper and equitable and 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 MDD and MST experience mitigated the applicant's misconduct. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will not change, as the Board determined the current RE code is proper and equitable given the applicant's diagnosis of MDD and should require a waiver for reentry. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF 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 AR20210011917 1