1. Applicant’s Name: a. Application Date: 21 July 2022 b. Date Received: 24 August 2022 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 requests, through counsel, an upgrade to honorable long with a narrative reason, reentry (RE), and separation program designator (SPD) code change. The applicant’s counsel further request removal of derogatory information from the applicant’s record. The applicant’s counsel seeks relief contending, in effect, the applicant was experiencing marital issues and began to experience anxiety and depression. The applicant saw a psychiatrist on post to deal with the anxiety and depression and was prescribed medication. The applicant military occupational specialty (MOS) was phased out and the applicant decided to become a 25b (Information Technology Specialist). While in school, the applicant and other roommates decided to use another Soldier’s credit card to order a pizza as a joke. The Soldier reported the theft, and the applicant received an Article 15 and was demoted to private/E-2. The applicant began having issues with military police due to a personal relationship. The applicant had a mild altercation with gate guards and got “lippy” with one of the guards. The applicant was later asked about the incident and the guard’s position was presented to be more serious than the applicant believed the situation to be. Soon after the incident, the applicant was told the Army was separating the applicant due to a pattern of misconduct. The applicant quietly accepted the discharge because the applicant’s contract was coming to an end. The applicant’s counsel states when the applicant went to get benefits through the Department of Veteran Affairs (VA), the applicant learned the GI Bill was not available due to the type of discharge the applicant received. The applicant when to school anyway and obtained an associate degree and went to work for a trauma hospital. The applicant’s counsel contends the applicant had honorable service, but the loss of the applicant’s marriage was a significant event and the applicant struggled to stay mentally and emotionally healthy. The applicant’s counsel contends the discharge was unfair and is both substantively and procedurally defective and the applicant should receive liberal consideration. b. Board Type and Decision: In a telephonic personal appearance conducted on 17 April 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 November 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 October 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received FG Article 15 for stealing money totaling $247; on 27 November 2007; on 27 November 2007, the applicant received a CG Article 15, for unlawfully assaulting a non commissioned officer (NCO), failing to obey a lawful order, and disrespecting a NCO in language; on 14 May 2008, the applicant received a letter of reprimand for failing to take the necessary steps when receiving an order known to the applicant to be illegal; the applicant wrongfully distributed a controlled substance and making a false statement; on 23 September 2007, the applicant was arrested for assault and battery of a high aggravated nature; on 29 September 2008; and the applicant received a FG Article 15 for failing to obey a lawful regulation, failing to obey a lawful order, and failure to go at the prescribed time to the appointed place of duty. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 October 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 January 2003 / 6 years (applicant extended for 7 months on 29 December 2005) b. Age at Enlistment / Education / GT Score: 18 / GED / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10, Information Technology Specialist/68D10, Operating Room Specialist / 5 years, 9 months, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 21 August 2006, reflects the applicant stole from another Soldier totaling $247. The punishment consisted of reduction to private/E-2 and forfeiture of $717 pay for two months. CG Article 15, dated 27 November 2007, reflect the applicant unlawfully assaulted an NCO on two separate occasions; willfully disobeyed a lawful order from an NCO; and was disrespectful, in language, towards an NCO. The punishment consisted of reduction private/E-2, suspended to be automatically remitted if not vacated before 27 December 2007 and extra duty for 14 days, extra duty for 7 days, suspended, to be automatically remitted if not vacated before 10 December 2007. On 14 May 2008, the applicant received a Letter of Reprimand for failing to take the necessary steps when receiving an order known to the applicant to be illegal, wrongfully distributing a controlled substance and making a false statement. An Incident Report, dated 29 July 2008, reflects the applicant was accused of simple assault FG Article 15, dated 23 September 2008, reflects the applicant failed to obey a general regulation; willfully disobeyed a lawful order from a noncommissioned officer (NCO); and failed to go at the prescribed time to the appointed place of duty. The punishment consisted of reduction to private/E-1; forfeiture of $673 pay for two months; and extra duty for 45 days. The applicant was counseled on multiple occasions for various forms of misconduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides medical evidence which supports a diagnosis for depression. (2) AMHRR Listed: A Report of Metal Status Evaluation (MSE), dated 28 September 2008, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with depressive disorder, NOS and cluster B personality traits. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Brief, DD Form 214, medical documents, Memorandums For Record-3, Annual Evaluation 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained an associate degree and went to work for a trauma hospital. 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. (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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian 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 civilian law and time-honored customs and traditions of the Army. 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 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, through counsel, an upgrade to honorable long with a narrative reason, RE, SPD code change. The applicant’s counsel further request removal of derogatory information from the applicant’s record. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s counsel requests the applicant’s narrative reason and SPD code for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Pattern of Misconduct,” and the separation code is “JKA.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason or SPD code to be entered under this regulation. The applicant’s counsel requests the applicant’s RE code be changed. The applicant was separated under the provisions AR 635-200, chapter 14, paragraph 12b, due to pattern of misconduct, with a general (under honorable conditions) discharge and a RE code of ”3.” Army Regulation 601-210 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. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes. 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. The applicant’s counsel contends the applicant was experiencing marital issues and began to experience anxiety and depression. The applicant saw a psychiatrist on post to deal with the anxiety and depression and was prescribed medication. The applicant’s AMHRR contains evidence which supports an in-service diagnosis of with depressive disorder, NOS and cluster B personality traits. The record shows the applicant underwent a MSE on 28 September 2008, which reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant’s counsel contends the applicant and other roommates decided to use another Soldier’s credit card to order a pizza as a joke. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant’s counsel contends the applicant began having issues with military police due to a personal relationship. The applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review. Additionally, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant’s counsel contends the discharge was unfair and is both substantively and procedurally defective and the applicant should receive liberal consideration because the applicant had honorable service. When the applicant went to get benefits through VA, the applicant learned the GI Bill was not available due to the type of discharge the applicant received. The applicant’s service accomplishments and the quality of the applicant service will be considered by the board according to the DODI 1332.28. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): N/A c. Counsel / Witness(es) / Observer(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. 10. 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: Depressive Disorder Not Otherwise Specified (NOS). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of Depressive DO NOS was made during active military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there are no mitigating BH conditions. While the applicant was diagnosed with Depressive DO NOS in the military, this condition does not mitigate his various acts of misconduct as it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant’s Depressive Disorder did not outweigh the applicant’s pattern of misconduct due to the severity of the offenses, which included stealing from another Soldier and assaulting a NCO. b. Response to Contention(s): (1) The applicant’s counsel contends the applicant was experiencing marital issues and began to experience anxiety and depression. The applicant saw a psychiatrist on post to deal with the anxiety and depression and was prescribed medication. The Board considered this contention and, after applying liberal consideration, determined that the applicant’s Depressive Disorder did not outweigh the applicant’s pattern of misconduct due to the severity of the offenses, which included stealing from another Soldier and assaulting a NCO. (2) The applicant’s counsel contends the applicant and other roommates decided to use another Soldier’s credit card to order a pizza as a joke. The Board considered this contention and determined that there was insufficient supporting evidence to overturn the Field Grade Article 15 the applicant received for this action. Therefore, its inclusion in the pattern of misconduct basis of separation was proper and equitable. (3) The applicant’s counsel contends the applicant began having issues with military police due to a personal relationship. The Board considered this contention and determined that there is insufficient supporting evidence to overturn the Field Grade Article 15 the applicant received for this action. Therefore, its inclusion in the pattern of misconduct basis of separation was proper and equitable. (4) The applicant’s counsel contends the applicant had honorable service. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the pattern of misconduct, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation (5) The applicant’s counsel contends the discharge was unfair and is both substantively and procedurally defective and the applicant should receive liberal consideration. The Board considered this contention, and, after applying liberal consideration, determined that the applicant did not provide sufficient evidence of the Command acting in an arbitrary or capricious manner. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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’s Depression Disorder did not excuse or mitigate the offenses of stealing, assault and disrespect of a NCO, wrongfully distributing a controlled substance, and multiple counts of disrespect to NCOs, as well as failures to obey lawful orders. The Board also considered the applicant's contentions regarding a bad personal relationship with a MP, that the theft was intended as a joke, and that a majority of the applicant’s service was Honorable, and found that totality of the applicant's record does not warrant a discharge upgrade. 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 that level of meritorious service warranted for an upgrade to 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. ? 11. 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 AR20220010719 1