1. Applicant’s Name: a. Application Date: 8 October 2021 b. Date Received: 8 October 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (1) The applicant seeks relief stating a statement from an investigator was used unjustly to stop their unit transfer and to initiate their separation from the Army. The use of the statement from the investigator was unjust because they challenged the investigation and requested a trial by Court-Martial, the charges were dropped, and the investigation ended. Other than this statement, their service was honest, faithful, and meritorious. (2) They were given a new Military Occupational Specialty (MOS) assignment after they made reports to their command that caused their platoon sergeant to lose rank due to the platoon sergeant's behavior. They failed to complete their 35N (Signals Intelligence Analyst) MOS training. Their platoon sergeant then made multiple statements about it making it their goal to get them discharged. Their discharge was inequitable because this noncommissioned officer (NCO) increased their "Pattern of Misconduct" allegations and by knowing ignoring reported medical concerns. They were counseled for not reporting to their duty assignment during a period they were going through tests to address their sleep problems. b. Board Type and Decision: In a records review conducted on 15 November 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 6 December 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 November 2012 (2) Basis for Separation: The applicant was informed of the following reasons: * failed to maintain positive control of sensitive items, Sensitive Compartmented Information Facility badge and Identification Card * failed to follow proper security procedures, leaving a Top Secret/Sensitive Compartmented Information computer unsecured and unattended * failed to go to their appointed places of duty on 12 different occasions * left appointed place of duty * treated an NCO with contempt * disobeyed a lawful order from an NCO * disobeyed a lawful order by the Battalion Commander, by failing to maintain their room and by possessing a large knife in violation battalion Standard Operating Procedures * disobeyed a lawful order by violating Phase IV privileges on three occasions, note: Phase IV privileges are not in evidence * under questioning by the Office of Special Investigations, admitted to smoking spice on three occasions (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 30 November 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 July 2011 / 3 years, 40 weeks b. Age at Enlistment / Education / GT Score: 19 / NIF / 113 c. Highest Grade Achieved / MOS / Total Service: E-2 / None / 1 year, 4 months, 10 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: (1) A memorandum, Company A, 344th Military Intelligence Battalion, subject: Separation Under Army Regulation 635-200, Paragraph 14-12b), A Pattern of Misconduct, [Applicant]), 21 November 2012, the applicant’s immediate commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14- 12b), for a Pattern of Misconduct, with a recommended characterization of service of general (under honorable conditions) for misconduct as described in previous paragraph 3c(2).The applicant's acknowledgement and a legal consultation are not in evidence. (2) On 27 November 2012, the commander submitted the request to separate the applicant prior to their expiration term of service. The commander states – (a) The specific, factual reasons for actions recommended: as described in previous paragraph 3c(2). (b) The description of rehabilitation attempts, the applicant was counseled on multiple occasions and provided ample opportunities to correct their behavior. Note: these developmental counseling statements are not in evidence. (c) The applicant received a Company Grade Article 15 on 17 May 2012 for failing to go to their appointed places of duty, treating an NCO with contempt, and failing to obey an NCO. Punishment consisted of reduction to private/E-1, and extra duty and restriction for 14 days. (d) The applicant is psychiatrically and medically cleared for any administrative proceedings appropriate by command. (3) A memorandum,111th Military Intelligence Brigade, subject: Separation under Army Regulation 635-200, Paragraph 14-12b, A Pattern of Misconduct, [Applicant], dated 30 November 2012, 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). (4) On 6 December 2012, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 1 years, 46 months, and 10 days of net active service this period. The applicant they did not complete their enlistment contractual obligation of 3 years and 40 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) * DA Form 4856-E (Developmental Counseling Form), reflecting their unit watch battle buddy duties * DA Form 4187 (Personnel Action), reflecting their advancement to the rank/grade of private two/E-2 * Soldier Assessment Report, reflecting their performance during Basic Combat Training * Case Files for Approved Separation from their Army Military Human Resource Record * DD Form 214 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), 6 September 2011, 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 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. 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 14-12b (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 Uniform Code of Military Justice, Army regulations, the civil law, and time- honored customs and traditions of the Army. (6) 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. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. Review of the record provides administrative irregularity in the proper retention of military records; specifically, the applicant's AMHRR does not contain their entire case files for approved separation; specifically, their acknowledgement of their notification of separation or of their legal consultation, explaining their rights; medical examination, and mental status evaluation. The available evidence does provide the applicant's Notification of Separation, the Commander's Report reflecting a listing of their misconduct, and the separation authority's memorandum directing the applicant's separation. (1) According to regulation, commanders were to initiate separation action against Soldiers who displayed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and/or conduct that was prejudicial to good order and discipline. (2) The applicant received a general (under honorable conditions) characterization of service rather than an under other than honorable conditions, which is normally considered appropriate. 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 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? No. The Board’s Medical Advisor reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist, or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends statement from an investigator was used unjustly to stop their unit transfer and to initiate their separation from the Army. The Board considered this contention and determined there was no evidence provided to the board that the discharge was inequitable, and the applicant holds no in service mitigating behavioral health conditions that could have outweighed the applicant’s misconduct of the following: failed to maintain positive control of sensitive items (SCIF badge and ID Card), failed to follow proper security procedures (leaving a TS/SCI computer unsecured), failed to go to their appointed places of duty x12, left appointed place of duty, treated an NCO with contempt, disobeyed a lawful order from an NCO, disobeyed a lawful order by the Battalion Commander (failing to maintain their room and by possessing a large knife in violation battalion SOP), disobeyed a lawful order by violating Phase IVx3 (note: Phase IV privileges are not in evidence), under questioning by the Office of Special Investigations, admitted to smoking spice x3. Furthermore, the applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. (2) The applicant contends other than the investigator's statement of their misconduct, their service was honest, faithful, and meritorious. The Board considered this contention and determined there was no evidence provided to the board that the discharge was inequitable, and the applicant holds no in service mitigating behavioral health conditions that could have outweighed the applicant’s misconduct of the following: failed to maintain positive control of sensitive items (SCIF badge and ID Card), failed to follow proper security procedures (leaving a TS/SCI computer unsecured), failed to go to their appointed places of duty x12, left appointed place of duty, treated an NCO with contempt, disobeyed a lawful order from an NCO, disobeyed a lawful order by the Battalion Commander (failing to maintain their room and by possessing a large knife in violation battalion SOP), disobeyed a lawful order by violating Phase IVx3 (note: Phase IV privileges are not in evidence), under questioning by the Office of Special Investigations, admitted to smoking spice x3. Furthermore, the applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. (3) The applicant contends they were going through tests to address their sleep problems. The Board considered this contention and determined there was no evidence provided to the board that the discharge was inequitable, and the applicant holds no in service mitigating behavioral health conditions that could have outweighed the applicant’s misconduct of the following: failed to maintain positive control of sensitive items (SCIF badge and ID Card), failed to follow proper security procedures (leaving a TS/SCI computer unsecured), failed to go to their appointed places of duty x12, left appointed place of duty, treated an NCO with contempt, disobeyed a lawful order from an NCO, disobeyed a lawful order by the Battalion Commander (failing to maintain their room and by possessing a large knife in violation battalion SOP), disobeyed a lawful order by violating Phase IVx3 (note: Phase IV privileges are not in evidence), under questioning by the Office of Special Investigations, admitted to smoking spice x3. Furthermore, the applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant holds no in service diagnosis that would excuse or mitigate the offenses of the following: failed to maintain positive control of sensitive items (SCIF badge and ID Card), failed to follow proper security procedures (leaving a TS/SCI computer unsecured), failed to go to their appointed places of duty x12, left appointed place of duty, treated an NCO with contempt, disobeyed a lawful order from an NCO, disobeyed a lawful order by the Battalion Commander (failing to maintain their room and by possessing a large knife in violation battalion SOP), disobeyed a lawful order by violating Phase IVx3 (note: Phase IV privileges are not in evidence), under questioning by the Office of Special Investigations, admitted to smoking spice x3. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below the level of meritorious service warranted for an upgrade to an Honorable discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20210015678 1