1. Applicant’s Name: a. Application Date: 2 May 2021 b. Date Received: 7 June 2021 c. Counsel: Yes 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 through counsel, requests an upgrade to honorable. The applicant through counsel seeks relief contending, in effect, PTSD majorly contributed to the applicant’s behavior prior to, during, and after the discharge. The applicant’s depression and anxiety were because of separation from the applicant’s wife and child that were in the Philippines, and the perceived nonsupport of the chain of command to address this issue, was exasperated by two falls from a light medium tactical vehicle (LMTV) striking the applicant’s head while in the field, and then furthered by a vehicle crash the applicant suffered. Counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 11 October 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board’s decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 13 July 2020 c. Separation Facts: The applicant’s AMHRR is void of the case separation file. However, the applicant provided documents which are described below in 3c (1) through (6). (1) Date of Notification of Intent to Separate: 23 June 2020 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to go to the appointed place of duty and disrespected a noncommissioned officer. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: The applicant requested counsel, however, there is no signature for counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 July 2020 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 May 2016 / 4 years, 24 weeks b. Age at Enlistment / Education / GT Score: 23 / Associate Degree / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Culinary Specialist / 4 years, 1 month, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Japan / None f. Awards and Decorations: AGCM, NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant through counsel, provided the following evidence: FG Article 15, 13 June 2019, for wrongfully communicating with another Soldier. The applicant was found not guilty of all specifications and the specification was lined out. The applicant received an oral reprimand. FG Article 15, 10 March 2020, for: The applicant failed to go at the time prescribed to the appointed place of duty on or about 29 August 2019. The applicant was disrespectful in language towards Sergeant R__ A__, a noncommissioned officer, by saying, “If you give me a counseling, we will go wall to wall” or words to that effect. The punishment consisted of a reduction from E-4 to E-1; forfeiture of $866.00 pay per month for 2 months; forfeiture of $766.00 pay per month for 2 months (suspended); extra duty for 45 days; restriction for 15 days (suspended); and an oral reprimand. Developmental Counseling Form, 4 June 2019, shows the applicant was counseled for communicating a threat to a noncommissioned officer. Uniformed Code of Military Justice (UCMJ) action was recommended. Analyst notes the applicant was found not guilty on the Record of Proceedings (ROP) Under Article 15, UCMJ, 13 June 2019. Developmental Counseling Form, 4 June 2019, shows the applicant was counseled for initiation of an adverse action (AA) flag. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 4 June 2019, shows the applicant was flagged for adverse action (AA), effective 4 June 2019. Report to Suspend Favorable Personnel Actions (Flag), 8 January 2020, shows the applicant was flagged for involuntary separation/field initiated (BA), effective 8 January 2020. Developmental Counseling Form, 8 June 2020, shows the applicant was counseled for recommendation for separation under AR 635-200, chapter 14-12c, commission of a serious offense. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: VA disability rating decision, 8 March 2021, showing the applicant was rated 70 percent disability for PTSD (also claimed as mental disorder due to personal trauma, memory loss and anxiety condition) with major depression disorder (claimed as major depression), anxious distress and alcohol use disorder. (2) AMHRR Listed: Report of Mental Status Evaluation, 21 January 2020, shows the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mild TBI with negative results. The applicant has a recent history of anger control difficulties. The command was advised to consider the influence of these conditions. The applicant was diagnosed with Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and Unspecified Problems Related to Employment. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed exhibits A through F (includes case separation packet, VA Rating Decision, and medical records). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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 PTSD, 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) 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. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states 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. (3) Paragraph 3-7b states 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. (4) 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. (5) Paragraph 14-3 prescribes 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. (6) Paragraph 14-12c prescribes 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. 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. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant’s DD Form 214 shows the applicant served 4 years, 1 month, 21 days. The applicant was discharged from the Army for failure to go to the appointed place of duty and disrespecting a noncommissioned officer. On 13 July 2020, the applicant was discharged with a general (under honorable conditions) characterization of service. The applicant through counsel contends, in effect, PTSD majorly contributed to the applicant’s behavior prior to, during, and after the discharge. The applicant provided a VA disability rating decision, 8 March 2021, showing the applicant was rated 70 percent disability for PTSD (also claimed as mental disorder due to personal trauma, memory loss and anxiety condition) with major depression disorder (claimed as major depression), anxious distress and alcohol use disorder. A Mental Status Evaluation, 21 January 2020, shows the applicant was diagnosed with an adjustment disorder with Mixed Disturbance of Emotions and Conduct and Unspecified Problems Related to Employment. The applicant through counsel contends, in effect, the applicant’s depression and anxiety was because of separation from the applicant’s wife and child that were in the Philippines, and the perceived nonsupport of the chain of command to address this issue, was exasperated by two falls from a LMTV striking the applicant’s head while in the field, and then furthered by a vehicle crash the applicant suffered. The applicant provided medical records, 26 February 2020, showing the applicant was seen in the William Beaumont Medical Center emergency room for neck pain because of a motorcycle accident. The applicant through counsel contends, in effect, it appears that there was an attempt being made to paint the applicant’s behavior as more inflammatory than it actually was. Counsel refers to: FG Article 15, 10 March 2020, procedures occurred about 3 months and 2 weeks after the alleged incident. Page five of the ROP under Article 15, UCMJ, someone typed in the following phrase, “and that you, did, at or near Fort Bliss Texas on or about [2] December 2019, wrongfully communicated [communicate] a threat to writ [wit] “I will blow this DFAC up,” or words to that effect." This statement is then marked through as if it were not to exist. Analyst notes, page 1, block 4a of the ROP under Article 15, UCMJ, states to line out not guilty specifications. The applicant was found guilty of some specifications. FG Article 15, 13 June 2019, page one of the ROP under Article 15, UCMJ, shows, misconduct that was lined out. Analyst notes, page 1, block 4a of the ROP under Article 15, UCMJ, states to line out not guilty specifications. The applicant was found not guilty of all specifications. Counsel contends, in effect, good service, including awards, positions of responsibility, and a tour in Japan. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. 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 an Adjustment Disorder and Alcohol-Induced Mood Disorder with noted pre-enlistment treatment for Depression, ADHD, and likely Oppositional Defiant Disorder. Post-service, the applicant is service connected for PTSD based on a February 2020 MVA with no diagnosis or service connection for TBI. (2) Did the condition exist, or experience occur during military service? Yes. The applicant was diagnosed in-service with an Adjustment Disorder and Alcohol-Induced Mood Disorder with noted pre-enlistment treatment for Depression, ADHD, and likely Oppositional Defiant Disorder. Post-service, the applicant is service connected for PTSD based on a February 2020 MVA with no diagnosis or service connection for TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant’s trauma was after the misconduct and thus not mitigating. The in-service diagnosis of Adjustment Disorder is not mitigating as it is a low-level difficulty coping which does not impair an individual's understanding of right from wrong and ability to make conscious choices. Given the pre-enlistment history and applicant self-report, it is more likely than not the applicant’s misconduct was a continuation of anger fueled by characterological traits rather than reflective of a clinical condition. Accordingly, there is no mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the applicant’s failure to go to the appointed place of duty and disrespected a noncommissioned officer outweighed the applicant’s adjustment disorder and alcohol-Induced mood disorder. Post-service, the applicant is service connected for PTSD based on a February 2020 MVA with no diagnosis or service connection for TBI. b. Response to Contention(s): (1) The applicant through counsel, requests an upgrade to honorable. The Board considered this contention and concurred with the opinion of the Board’s Medical Advisor, a voting member, and determine that despite applying liberal consideration of all the evidence before the board, the applicant in service diagnosis of adjustment disorder and alcohol-Induced mood disorder did not excuse or mitigate the applicant’s failure to go to the appointed place of duty and disrespected to a noncommissioned officer the basis for separation. Thus, the applicant discharge was proper and equitable. (2) The applicant through counsel contends, in effect, PTSD, majorly contributed to the applicant’s behavior prior to, during and after the discharge. The Board, after applying liberal consideration, concurred with the opinion of the Board’s Medical Advisor that the available evidence did not support a conclusion that any of the applicant’s medical conditions outweighed the misconduct - failure to go to the appointed place of duty and disrespected a noncommissioned officer basis for applicant’s separation. (3) The applicant through counsel contends, in effect, the applicant’s depression and anxiety was because of separation from the applicant’s wife and child that were in the Philippines, and the perceived nonsupport of the chain of command to address this issue, was exasperated by two falls from a LMTV striking the applicant’s head while in the field, and then furthered by a vehicle crash the applicant suffered. The Board liberally considered this contention, ultimately the board determined that the available evidence did not support a conclusion that any of the applicant’s medical conditions mitigated the basis for applicant’s separation. (4) The applicant through counsel contends, in effect, it appears that there was an attempt being made to paint the applicant’s behavior as more inflammatory than it actually was. The Board considered this contention and the applicant’s assertion of inequity, however the board determined that there is no evidence of said inequity in official records, and the applicant did not provide supporting documentation to overcome the presumption of regularity in the discharge process. Ultimately, the Board determined that the assertion alone did not outweigh the miscount outlined in 9b (1). (5) Counsel contends good service, including awards, positions of responsibility, and a tour in Japan. The board recognizes and appreciates the applicant’s willingness to serve and considered the applicant’s four years of service and post accomplishment during the board proceedings but determined these factors did not outweigh the applicant’s failure to go to the appointed place of duty and disrespect to a noncommissioned officer. 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, the applicant’s adjustment disorder and alcohol-Induced mood disorder did not mitigate the offenses of failure to go to the appointed place of duty and disrespected to a noncommissioned officer. 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. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 AR20210016476 1