IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20140012070 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of her under other than honorable conditions discharge and correction of the separation authority, narrative reason for separation, separation program designator (SPD) code, and reentry (RE) code shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states the characterization of her service is disproportionate to her overall record of service.  Generally, characterization of service is based on a pattern of behavior rather than a single incident.  However, in her case, a single incident prompted the discharge.  The incident was an anomaly; a departure from her normal behavior.  Due consideration should also be given to her emotional condition, young age, length of service, and service in Afghanistan.  All of these factors support an upgrade of her discharge under Secretarial Plenary Authority. The applicant requests a personal hearing to present evidence and testimony.

   a.  On 12 September 2007, she enlisted in the U.S. Army for the opportunity to travel the world, improve her physical state, have a rewarding career, give back to her community, and serve until retirement.  She accomplished many of her goals during a short period of time.  She was put in charge of the barracks while the brigade was deployed to Iraq and she conducted a changeover within the Department of Public Works.
   
   b.  In the summer of 2008, she was assigned to Company A, 603rd Aviation Support Battalion.  She performed duties as a supply clerk and was also selected as a guidon bearer, squad leader, and Soldier of the Year for the battalion.  She also earned an Associate's Degree in Criminal Justice.  At some point during her assignment to the unit, a mutual friend introduced her to a group of female Soldiers and they became friends.

   c.  She deployed to Afghanistan in November 2009 and was promoted to sergeant (SGT)/pay grade E-5 on 1 May 2010.  During her deployment she was featured in a newspaper article for her educational achievements and also recognized by the battalion commander for doing a superior job during supply room inspections.  Her accomplishments seemed to generate jealousy by Soldiers she once considered her friends and she felt very uncomfortable.

   d.  She redeployed from Afghanistan in October 2010 to Hunter Army Airfield (AAF), GA.  During November and December 2010, she started to feel the wrath of the group of female Soldiers.  In January 2011, while in a Savannah nightclub, she was involved in a verbal and physical altercation with four female Soldiers. The security personnel removed them from the nightclub.  While she was walking to her car, she noticed she was being followed.  She states, "I was as scared as I have ever been in my life to include my deployment to Afghanistan.  As I got to my car they were ten to fifteen steps away from me.  After what had just occurred in the nightclub, at the time, I was positive that I was about to be assaulted yet again.  I hastily reached for the weapon in my car and fired, with no intended target, to defend myself and safeguard my personal possessions."

   e.  She states that members in her immediate chain of command told her that they wanted to retain her, but the higher level of command was pushing to have her administratively discharged.  When the separation proceedings were initiated, the civilian case against her was still pending.  She believes that her trial defense attorney did the best he could do.  He presented facts and evidence, along with great character witness statements from officers and enlisted Soldiers, and she believes the members of the Administrative Separation Board (ASB) were influenced, as well.

   f.  She adds, "[i]n December 2012, my civilian case was adjudicated and I was never convicted.  I'm being supervised for a certain amount of time and upon successful completion my criminal record will be expunged."  She concludes that her administrative discharge could have been avoided had the command waited for disposition of her civilian case.

   g.  Since being discharged she has continued her education and is employed at a hospital as an admissions registrar.  She has learned that an isolated incident does not change one's course in life completely.


   h.  She concludes by stating her DD Form 214 should be changed to show the following –

* type of discharge:  "General, Under Honorable Conditions"
* separation authority:  "Army Regulation (AR) 635-200 (Active Duty Administrative Enlisted Separations), Chapter 5 (Separation for Convenience of the Government)"
* narrative reason for separation:  "Secretarial Plenary Authority"
* SPD and RE codes:  Commensurate with the above changes

3.  The applicant provides a copy of her DD Form 214 and a State of Georgia, Final Disposition Form, dated 7 December 2012.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions discharge.

2.  Counsel states the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of her discharge.  He adds the applicant requests a copy of any written advisory opinion at which time counsel will file, on her behalf, a summary of the facts and reasons why an upgrade of her discharge is fitting.  Additionally, the applicant requests a personal hearing and will present evidence at the hearing.  On 12 February 2015, counsel provided a brief in support of the applicant's request for correction of records.

   a.  Counsel states the Department of Veterans Affairs (VA) is denying the applicant benefits because of the characterization of her service.  He also states her performance record outweighs the lapse in judgment causing her involuntary separation; the 20 March 2012, mental status evaluation is inconsistent with her medical records, including Post Traumatic Stress Disorder (PTSD) symptoms that the ASB did not consider; Department of Defense (DoD) guidance provides that the individual's mental health record should receive liberal consideration as a mitigating factor; and the separation authority exceeded its power and usurped a decision reserved for Headquarters, Department of the Army (HQDA).

   b.  He states the applicant began to receive mental health treatment after she returned from Afghanistan.  On 26 October 2011, she received an evaluation with the diagnosis of –

* Axis I (Psychiatric Conditions):  "PTSD, Depression, Anxiety, Insomnia"
* Axis II (Personality and Intelligence Disorders):  "None"
* Axis III (Medical Conditions):  "Headaches"
* Axis IV (Psychosocial Stressors):  "Job Stress, social isolation"
* Axis V (Global Assessment of Functioning (GAF)):

* "50 current"
* "75 past"

   c.  He also states the applicant's earlier mental health history includes –

* 14 March 2008 – symptoms of poor sleep, diagnoses:  Adjustment Disorder and Depressed Mood
* 13 June 2008 – diagnosis for Insomnia
* 19 August 2008 – referral for Depression
* 22 December 2008 – reported "little interest or pleasure in doing things"
* 17 September 2009 – referral for Depression
* 8 January 2011 – altercation outside of nightclub
* 2 February 2011 – Axis I diagnosis modified to "Adjustment Disorder with Anxiety and Depressed Mood" and referral to Behavioral Health Clinic for further evaluation
* 6 May 2011 – referral for a Sleep Disorder evaluation
* 3 October 2011 – PTSD Assessment:

* PTSD Checklist–Military (PCL-M) score of 53 (severe range)
* Becks Depression Inventory (BDI-II) score of 33 (severe range)
* Becks Anxiety Inventory (BAI) score of 7 (minimal symptoms)
* Note:  "[a]ccording to the patient, she is currently experiencing difficulty with depression, anger, sleep, and irritability."  (Irritability and anger are symptoms of the hyper-arousal element of PTSD.)

* 26 October 2011 –  E____ D. S____, Ph.D., Medical and Rehabilitation Psychology Associates, Professional Corporation, "found after an initial evaluation that four traumatic events in [applicant's] personal life, as well as events in Afghanistan, triggered PTSD symptoms, including nightmares, flashbacks, sleep disturbances (all elements of re-experiencing the traumatic events)"
* 20 March 2012 – mental health evaluation; no mental health problem found despite the above record

   d.  Counsel states the ASB convened on 23 July 2012.  She was charged with aggravated assault, but she was never convicted in a civilian court.  He also states, "[i]nstead, [applicant] enrolled in the first offender program in December 2012, completed it, and never received a conviction.  The first offender program had the same effect as an acquittal:  no conviction."  He adds the Army separated the applicant before civilian disposition of the aggravated assault charge.

   e.  As mitigating factors, the Board should consider the applicant's mental health history, including her most recent evaluation conferring a diagnosis of PTSD, and the fact that her mental health record was never brought to the attention of the chain of command.

   f.  DoD policy guidance applies to the applicant's case.  Specifically –

* liberal consideration will be given in –

* petitions for changes in characterization for service to Service treatment record entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions
* cases where Service records or any document from the period of service substantiates the existence of one or more symptoms of PTSD or a PTSD-related condition during the time of service
* cases where civilian providers confer diagnoses of PTSD or a PTSD-related condition when case records contain narratives that support symptomatology at the time of service

* special consideration will be given to VA determinations which document PTSD or PTSD–related conditions connected to military service

   g.  He states the applicant's poor mental and emotional health mitigated the misconduct leading to the discharge.  In addition, there is no evidence the ASB received information about her mental health record, which merited consideration in the overall evaluation of her record of service.

   h.  The decision makers (i.e., ASB members and the separation authority) were not fully informed about her mental health status and enrollment in the first offender program.  Thus, their decisions were not fully informed and the separation proceeding were substantially defective.  As such, the presumption of proper Government proceedings has been rebutted.

   i.  Counsel states HQDA authority was usurped because "[the applicant] successfully completed a pre-trial diversion program that 'had the effect' of an acquittal.  That 'effect' is no conviction."  He adds, "[i]f there was a question about the effect of the first offender program, then only HQDA had the authority to decide whether the pre-trial diversion program 'had the effect' of an acquittal."  A suspended separation (or suspended proceedings until civilian disposition) would have resolved the matter without prejudice to the Army.  However, the commander violated the applicant's Fifth Amendment rights by precipitously separating her when she was in a program having the same effect as an acquittal.

   j.  The command considered a General Discharge in the applicant's case, but she was issued an Other Than Honorable Discharge.  Her record of good performance outweighs the single instance of poor judgment and impulsive action.

   k.  Since being discharged the applicant has started a family, career, and schooling.

   l.  Counsel concludes by stating the applicant's DD Form 214 should be changed to show the following –

* type of discharge:  "General, Under Honorable Conditions"
* separation authority:  "AR 635-200, Chapter 5"
* narrative reason for separation:  "Secretarial Plenary Authority"
* SPD Code:  Commensurate with above changes
* RE Code:  "2"

3.  Counsel provides copies of the applicant's educational records, character reference letters, and psychological evaluation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 12 September 2007 for a period of 2 years.  At the time she was 18 years of age.  She was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  Through two reenlistments, she continued to serve on active duty in the RA.  At the time of her 3-year reenlistment in the RA on 21 May 2010, she was 21 years of age.

2.  She served in Afghanistan from 3 November 2009 to 16 October 2010.  She was promoted to SGT (E-5) on 1 May 2010.

3.  U.S Army Criminal Investigation Command, Hunter Criminal Investigation Division (CID), Hunter AAF, GA, CID Report of Investigation, dated 24 June 2011, shows the investigation established there was probable cause to believe the applicant committed the offense of Aggravated Assault when she used a handgun to fire upon four Soldiers at about 0150 hours on 8 January 2011.

4.  On 19 March 2012, the company commander notified the applicant of her referral for a behavioral health evaluation.

5.  A DA Form 3822 (Report of Mental Status Evaluation), dated 20 March 2012, shows the applicant was evaluated by a clinical psychologist.  It shows in –

* Section (IV) (Impression) –

* Axis I:  Life Circumstances Problem
* Axis II:  is blank (no entries)
* Axis III:  See Medical Record

* Section V (Diagnosis – Only Those Required for Administrative Proceeding):  The service member (SM) can understand and participate in administrative proceedings, can appreciate the difference between right and wrong, and meets medical retention standards
* Section VIII (Additional Comments):  Screened for Post Traumatic Stress Disorder (PTSD) and mild Traumatic Brain Injury (TBI) with the following results –

* PTSD Screening:  40 Score "40" and an "X" for "Negative"
* TBI Screening:  Score of "O" and an "X" for "Negative"
* "The SM has been screened for PTSD and TBI.  These conditions are either not present or, if present, do not meet Army Regulation 40-501 (Standards of Medical Fitness) criteria for a medical evaluation board.  Command is advised to consider the influence of those conditions, if present, when determining final disposition."

* Remarks:

* "In the Behavioral Health interview, SM presented a normal mental status, denied any thoughts of harm to self or others.  SM reported that she has been dealing with an off-post legal incident for more than a year which she hopes will soon be resolved.  SM reports that she was falsely accused of misbehavior off-post, but she now has a statement from another active duty member to support her.  Depression scale score is in the mild range of depression categories, and the SM attributed this to the stress of the legal situation she has been dealing with.  Anxiety scale score is in the minimal/within normal limits range of anxiety categories.  SM reports high motivation to continue to perform her NCO [noncommissioned officer] duties at a high standard."
* "There was no psychiatric disease or defect that warranted disposition through medical channels.  SM is cleared for any administrative action deemed appropriate by command."

6.  On 28 March 2012, the commander notified the applicant that he was recommending her for separation under the provisions of Army Regulation
(AR) 635-200 (Enlisted Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of a serious offense.  The basis for the commander's proposed action was that the applicant committed aggravated assault when she fired a weapon at four fellow Soldiers on 8 January 2011.  The applicant was advised of her rights and the separation procedures involved.

7.  On 30 March 2012, the applicant consulted with legal counsel and was advised of the rights available to her.

	a.  She acknowledged that military legal counsel for consultation was available to assist her and she requested counsel for consultation.

   b.  She requested consideration of her case by an ASB and also requested personal appearance before the ASB.

   c.  She indicated that statements in her own behalf were not submitted.

	d.  She was advised that she may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to her.  

   e.  She was informed that, if she received a discharge/character of service which was less than honorable, she could make application to the ADRB or the Army Board for Correction of Military Records (ABCMR) for upgrade of her discharge.  However an act of consideration by either board did not imply her discharge would be upgraded.

	f.  The applicant and her counsel placed their signatures on the document.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action with an under other than honorable conditions discharge.

   a.  The company commander commented, "I do not condone [applicant's] actions.  [Applicant] can be rehabilitated.  Manner of performance has been outstanding."
   b.  The battalion commander commented, "Outstanding service while on-duty. After such a severe off-duty crime, cannot justify retention or honorable discharge.  [Applicant] fired a pistol at fellow Soldiers while in our civilian community!  [She] can no longer serve as a leader, NCO, or Soldier in the Army."

9.  On 23 May 2012, the separation authority approved the applicant's request for personal appearance before an ASB and referred her case to the ASB.

10.  On 23 July 2012, an ASB considered all the admitted evidence before it and found the allegations against the applicant in the notice of administrative separation were supported by a preponderance of the evidence.  The ASB recommended that the applicant be discharged from service with a characterization of service of under other than honorable conditions.

11.  On 16 August 2012, the separation authority approved the findings and recommendation of the ASB.  He directed the applicant be discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense and that her service be characterized as under other than honorable conditions.  Accordingly, the applicant was reduced to private/pay grade E–1.

12.  Her DD Form 214 shows she was discharged on 5 September 2012 under the provisions of AR 635-200, paragraph 14-12c.  She completed 4 years, 
11 months, and 24 days of net active service this period.  It also shows in –
	
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):

* Army Commendation Medal
* National Defense Service Medal
* Afghanistan Campaign Medal with 2 Bronze Service Stars
* Global War on Terrorism Service Medal 
* Army Service Ribbon
* NATO (North Atlantic Treaty Organization) Medal

* item 14 (Military Education) –

* Property Book Unit Supply Enhanced, 1 week – 2009
* Small Arms Maintenance, 1 week – 2008
* Unit Supply Specialist, 7 weeks – 2008

* item 18 (Remarks), in pertinent part, "Immediate Reenlistment This Period:  20070912–20091117, 20091118–20100520."  (It does not show the period of her continuous honorable active service.)
* item 24 (Character of Service):  "Under Other Than Honorable Conditions"
* item 25 (Separation Authority):  "AR 635–200, Paragraph 14–12c"
* item 26 (Separation Code):  "JKQ"
* item 28 (Narrative Reason for Separation):  "Misconduct (Serious Offense)"

13.   The applicant submitted a request to the ADRB for a change to the character of service and narrative reason for her discharge.  On 5 February 2014, the ADRB determined that the character of her service and the reason for her discharge were both proper and equitable.  However, the ADRB directed a change to the RE code from RE-4 to RE-3.  Thus, the applicant's DD Form 214 was voided and she was issued a DD Form 214 showing the correct RE code.

14.  In support of the applicant's request, the following documents were provided.

   a.  Superior Court of Chatman County, Eastern Judicial Circuit of the State of Georgia, Final Disposition, Case Number:  Indictment:  CR12-XXXX-KA, dated 
7 December 2012, that shows the applicant was charged with Aggravated Assault (4 Counts); prior to adjudication of guilt and a felony sentence she entered a negotiated plea; she was sentenced under the First Offender's Act, O.C.G.A. [Georgia Code] §42-8-60 et. seq., to 8 (8) years of probation for each of the four (4) counts with each sentence to run concurrently.  It also shows that, upon violation of the terms of probation, upon conviction for another crime during the period of probation, or upon the Court's determination that the applicant is or was not eligible for sentencing under the First Offender Act, the Court may enter an adjudication of guilty and proceed to sentence the applicant to the maximum sentence as provided by law.

   b.  An article from the website http://www.dvidshub.net  titled, "School is in session:  Deployed Soldiers take advantage of continuing education opportunities," dated 26 August 2010, that shows the applicant was featured as one of the Soldiers participating in the Tuition Assistance Program for voluntary off-duty education.  She stated that she was pursuing her associate's degree with plans of completing a bachelor's degree in criminal justice and then applying for the Army's "Green to Gold" program.

   c.  Ashworth College Certificate and Student Grade Report that shows the applicant was awarded an Associate of Science degree in Criminal Justice on 
21 September 2010.

   d.  Everest Institute Grade Reports for Medical Administrative Assistant courses completed during the period 20 November 2010 to 29 March 2013.

   e.  Character reference letters from:

   	(1)  Captain T____ L. M____, dated 17 December 2011, who served as the battalion logistics officer, 603rd Aviation Support Battalion.  She offered strong endorsement of the applicant's professionalism and positive attitude in accomplishing the mission.

    	(2)  First Lieutenant R____ H____, Assistant S-3, 603rd Aviation Support Battalion, Combat Aviation Brigade, 3rd Infantry Division, Hunter AAF, GA, dated 
10 January 2012, that shows he served as the executive officer of Company A from 28 March 2011 to 4 December 2011.  He summarized the applicant's positive characteristics and accomplishments.  He also recommended suspension of the execution of her discharge to allow her to continue to serve in the U.S. Army.

   	(3)  Chief Warrant Officer Three M____ D. A____, dated 11 January 2012, former property book officer in the 603rd Aviation Support Battalion.  He attested to her quiet, reliable, and professional manner.

	 	(4)  Staff Sergeant T____ S____, dated 10 January 2012, who has known the applicant since March 2008.  She attested to her being an outstanding Soldier and recommended her retention in the U.S. Army so that she could continue to serve, train, and lead Soldiers.

	 	(5)  Sergeant R____ A. H____, dated 11 January 2012, who had known the applicant for three years.  He attested to her devotion to duty, high standards, dedication to supporting and training subordinates, and commitment to the U.S. Army.

	 	(6)  Specialist J____ L. R____, dated 10 January 2012, the unit armorer who relied upon the applicant for guidance and inspiration.  He stated that she shared her knowledge with many other Soldiers in the unit.  He also attested to her values and morals as an NCO.

   	(7)  Doctor C____ C____, dated 10 April 2013, who mentored the applicant during her military service.  She attested to the applicant's outstanding performance both on and off duty.  She summarized the applicant's accomplishments in her civilian education.  She also recommended upgrade of the characterization of her discharge.

   	(8)  Ms. C____ K____, dated 13 May 2013.  She knew S____ A____, one of the alleged victims, for about 3 years.  She described her in a very negative manner with a history of engaging in physical altercations.  She offered positive comments about the applicant's character.  She concluded that the applicant was pre-judged and did not receive a fair hearing at the ASB.  

   	(9)  Ms. L____ W. N____, dated 16 May 2013, instructor for the Medical Administrative Assistant program at Everest Institute who has known the applicant for seven months.  She attested to the applicant's ambition and dedication to her studies.  She added that the incident in question was out of character for the applicant and she wonders if there were mitigating circumstances.   She recommended upgrade of the characterization of her discharge

   	(10)  Ms. C____ P. R____, dated 24 May 2013, applicant's immediate supervisor during the period under review.  She provided an example she witnessed of the applicant's non-confrontational nature in the work environment.  She acknowledged that she did not counsel or discipline the applicant regarding the incident.  She stated that the applicant told her about being harassed by the four female Soldiers and that officials in the Judge Advocate General's office expressed their interest in her discharge.
 
   	(11)  Ms. P____ H____, undated, who stated that she was present in the nightclub at the time of the incident.  The applicant and A____ H____ and S____ A____ were involved in an altercation.  While the applicant was walking to her car, the two other ladies were yelling profanity at her.  After about five minutes of exchanging words, she heard gunshots.  She stated that she never saw the applicant with a weapon and, once inside their car, A____ H____ came up with a story of what they should say when the police arrived, including providing personally identifying information about the applicant.

   f.  Biographical, psychological, and social history of the applicant, dated 11 June 2014, presented by M____ L. R____, Doctor of Education, Licensed Mental Health Counselor, First United Methodist Church, St. Petersburg, FL.

    	(1)  On 8 April 2014, her presenting problem was reported as Stress and Anxiety stemming from her isolated work setting (data entry duties) that makes her vulnerable to memories of traumatic incidents in Afghanistan and Savannah, GA.

    	(2)  She does not trust talking with anyone about what happened to her while she was deployed to Afghanistan (i.e., friendly helicopter gunfire above and around her barracks during an enemy attack and she was assigned to patrol the streets around her post).  She was not honest with military medical personnel about the symptoms she was experiencing from the trauma of her experiences in Afghanistan.

    	(3)  It also shows, "[d]uring her counseling sessions, [applicant] reports she continues to experience the feelings of shock, and numbing powerlessness resulting from the criminal and administrative legal proceedings that found her at fault for defending herself from an assault by four female Soldiers from her unit by firing her gun in the direction of the women, while the four other women received no criminal or administrative consequences for initiating their assault on her in the club and subsequently following her to her car as she attempted to leave the conflict."  

    	(4)  The report provides a summary of her mental health history (the same as previously presented by counsel in his brief and also captured in paragraphs 2b and 2c of counsel's statement, above).

    	(5)  On 28 May 2014, the applicant was diagnosed, as follows:
   
* BDI Total Score of 47 (within range of Extreme Depression)
* GAD-7 Anxiety Total Score of 14 (within range of Moderate Anxiety)

* Axis I:  PTSD, Depression, Anxiety, Insomnia
* Axis II:  None
* Axis III:  Seven months pregnant; bilateral foot pain, allergies
* Axis IV:  Legal:  pending diversionary status of criminal charges in Savannah, GA, and pending appeal regarding military discharge status for VA benefits; concerns about legal outcome's impact on future career opportunities; family problems with biological mother
* Axis V:  GAF:  60 current	75 past

15.  In the processing of this case, an advisory opinion was obtained from the Director, Healthcare Delivery, Office of The Surgeon General, Falls Church, VA.

   a.  The advisory official noted that medical records suggest the applicant disavowed responsibility for her actions in her statements to her provider, "I didn't do anything wrong" and she stated she was falsely accused of the offense (despite this happening in a public area with multiple witnesses).

   b.  Based on a thorough review of her military records, there is insufficient evidence to conclude the applicant met the diagnostic criteria for PTSD while in the service.  Although she was diagnosed with PTSD by a civilian mental health counselor on 9 June 2014, nearly 2 years after discharge, there was no evidence she met the diagnostic criteria for PTSD while in the service.  She was seen by multiple behavioral health providers within military treatment facilities and none of them diagnosed PTSD.  Furthermore, she did not screen positive on multiple administrations of the PTSD Checklist (PCL).

   c.  The advisory official concludes that PTSD is not a mitigating factor in this case and should not impact board decisions about the reason for discharge or characterization of service.

16.  On 26 June 2015, the applicant was provided a copy of the advisory opinion to allow her the opportunity to submit comments or a rebuttal.

17.  On 14 July 2015, applicant's counsel provided a response to the advisory opinion.  He disputes the advisory official's conclusion that there is insufficient evidence to conclude that the applicant met the diagnosis criteria for PTSD while in service and states that sufficient evidence does exist.

   a.  He restates specific incidents of the applicant's history of mental health treatment (offered in his original brief; see counsel's paragraphs 2b and 2c) –

* 19 August 2008 – referral for Depression
* 22 December 2008 – reported "little interest or pleasure in doing things"
* 17 September 2009 – referral for Depression
* 2 February 2011 – Axis I diagnosis modified to "Adjustment Disorder with Anxiety and Depressed Mood" and referral to Behavioral Health Clinic for further evaluation
* 6 May 2011 – referral for a Sleep Disorder evaluation
* 3 October 2011 – PTSD Assessment:  PCL-M score of 53 (severe range)

   b.  He states the applicant's VA medical records contradict the advisory official's statement that the applicant did not screen positive on multiple administrations of the PCL.  She did test positive on 3 October 2011.  In addition, a note, dated 20 December 2011, shows "Working Diagnosis, Axis I, PTSD" which shows she did receive a diagnosis for PTSD while in service.
   
   c.  The Chronological Record of Medical Care, dated 12 June 2012 shows "SM is 23 year old enrolled in the Respect-Mil program on 13 March 2011 with [diagnosis] of Depression and PTSD."  He adds that many of the applicant's PCL scores fall within the range that substantiates the diagnosis of PTSD while she was in service.


   d.  In May 2012, her PCL score was 10/44 (from a civilian provider), which meets the threshold for PTSD.  In addition, the civilian provider performed a clinical interview, which is essential to a proper analysis.  The applicant's private therapist, who also diagnosed her with PTSD, performed a clinical interview. The DoD/VA Best Practices Manual states that "diagnosis for PTSD should be obtained based on a comprehensive clinical interview that assesses all the symptoms that characterize PTSD.  Structured diagnostic interviews, such as the Clinician-Administered PTSD scale (CAPS), may be considered."

   e.  Counsel concludes by stating the applicant's service medical records and VA medical records claim file provided in support of her application substantiate a diagnosis of PTSD.

18.  The website for the Georgia Justice Project (http://www.gjp.org) provides information on the State of Georgia's "First Offender Act" and shows in the Frequently Asked Questions:

* "What is the First Offender Act?  If you are sentenced as a First Offender and successfully complete your sentence, you will not have a conviction and the record of the case will be sealed from your official criminal history report.  Certain First Offender records related to serious sexual or violent offenses remain available for employment with children, elderly, and the mentally disabled.  First Offender records will also be available for law enforcement and criminal justice purposes.  The intent of the law is to give first time offenders a chance to learn from their mistake and move on with their lives without the burden of a conviction."
* "Is a First Offender sentence a conviction?  No, First Offender adjudication is not a conviction.  It is a 'deferred adjudication,' which means that even though you plead guilty, a conviction is not entered.  If you successfully complete the terms of your sentence, the court will 'discharge' the case without conviction.  When the discharge is filed, the criminal records are sealed from your official criminal history report.  You will not have a conviction for the offense(s).  If, however, you violate the terms of your sentence/probation the judge may revoke your First Offender status.  If your First Offender status is revoked, you will be convicted of the offense(s).  In addition, if your First Offender status is revoked, the court may sentence you to the maximum penalty allowed by law for the offense(s).  You should also be aware that GCIC [Georgia Crime Information Center] is required by law to enter a revocation on your record if you are convicted of another crime while on First Offender probation. This happens even if the court does not revoke your First Offender status.  If you are not revoked and are continued as a First Offender, the correction can be made to your GCIC criminal history record."
19.  The website Avvo (http://www.avvo.com) provides information on lawyers and legal issues so that members of the public can make choices.  It pertinent part, it shows. "First offender pleas in the State of Georgia:  Despite its significant pitfalls and severe consequences for non-compliance with sentence conditions, the State of Georgia's First Offender Act provides individuals not previously convicted of a felony with the opportunity to plead guilty to a criminal charge, pursuant to the provisions of the law, and avoid adjudication of guilt if they comply with the conditions of their sentence.  Recognizing the need to provide certain individuals who have not previously been convicted of a felony with the opportunity for a second chance, the State of Georgia enacted the provisions of Georgia Code (O.C.G.A.) §42-8-60 et. seq."

20.  Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), lists Article 128 (Assault) and shows, in pertinent part, any person who is subject to this chapter who commits assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm is guilty of aggravated assault and shall be punished as a court-marital may direct.

21.  AR 635-200 sets forth the authority for the separation of enlisted personnel.

   a.  Chapter 1 (General Provisions), paragraph 1-17 (Restrictions on administrative separations and board hearings), subparagraph b, provides that separation per this regulation normally should not be based on conduct that has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.  Administrative separations under the provisions of chapter 14 are subject to the following restrictions.  No Soldier will be considered for administrative separation because of conduct that, in pertinent part, has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof.  Only HQDA will decide that an action does not have the effect of an acquittal.  The convening authority must submit a request for such a determination through command channels to HQDA (AHRC–EPR–F).

   b.  Chapter 5 (Separation for Convenience of the Government), Section I (General), paragraph 5-3 (Secretarial plenary authority), provides that separation under this paragraph is 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 the regulation applies and early separation is clearly in the best interest of the Army.  Separations under this authority is effective only if approved in writing by the Secretary of the Army or the Secr etary's approved designee as announced in updated memorandums.
A Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.

   c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  The conditions that subject Soldiers to discharge include the commission of a serious military or civil 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 MCM.

    	(1)  Section II (Conviction by Civil Court), paragraph 14-5, provides conditions that subject a Soldier to discharge and reduction in grade.  A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present:

    	(a)  a punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; or

    	(b)  the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.

    	(2)  Section III (Acts or Patterns of Misconduct), paragraph 14-12, provides conditions that subject Soldiers to discharge for, in pertinent part, commission of a serious offense.  A Soldier may be considered for discharge for commission of a serious military or civil 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 MCM.

		(3 )  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction or higher authority, unless authority is delegated.

	d.  Chapter 3 (Character of Service/Description of Separation) provides in:

    	(1)  paragraph 3-5 (General considerations): 

    		(a)  Characterization at separation will be based upon the quality of the Soldier's service, including the reason for separation.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the Uniform Code of Military Justice (UCMJ), directives and regulations issued by the Army and the time-honored customs and traditions of military service.

    		(b)  The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.

    		(c)  The reasons for separation, including the specific circumstances that form the basis for the separation, will be considered on the issue of characterization.  As a general matter, characterization will be based upon a pattern of behavior other than an isolated incident.  There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.

    		(d)  Due consideration will be given to the Soldier's age, length of service, grade, aptitude, physical and mental conditions, and the standards of acceptable conduct and performance of duty.

    		(e)  The characterization of service is of great significance to the Soldier and must accurately reflect the nature of service performed.  Eligibility for veterans' benefits provided by law, eligibility for re-entry into service, and acceptability for employment in the civilian community may be affected by these determinations.  The characterization of service will be determined solely by the military record during the current enlistment or period of service, plus any extension thereof, from which the Soldier is being separated.  The Soldier's performance of duty and conduct must be accurately evaluated.  The evaluation must be based on the overall period of service and not on any isolated actions or entries on the DA Form 2-1 (Personnel Qualification Record).

    	(2)  paragraph 3-7a, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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; and

    	(3)  paragraph 3-7b, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

22.  AR 635-5-1 (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.

	a.  It identifies SPD code "JKQ" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, paragraph 14-12c, based on misconduct (serious offense).

	b.  The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JKQ."

23.  AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 includes a list of the RA RE codes and how they are applied:

* RE-1 – Soldier who is qualified for reentry or continuous service at time of separation, if all other applicable criteria are met
* RE-2 – Soldier separated prior to 8 March 2011; code will no longer be used.  Qualified for enlistment, provided reason and authority does not preclude enlistment or require a waiver.  Applicant may not enlist until
93 days after separation, if otherwise qualified.
* RE-3 – Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable

24.  AR 635-5 (Separation Documents), in effect act the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

	b.  Paragraph 2-1 states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.  It shows item 18 is used for entries required by HQDA, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."

	c.  Paragraph 2-4 contains item-by-item instructions for completing the DD Form 214.  It shows for:

* item 25, obtain correct entry from regulatory directives authorizing the separation
* item 26, obtain the correct entry from AR 635–5–1, which provides the corresponding SPD code for the regulatory authority and reason for separation
* item 28, this is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1

25.  Post-traumatic stress disorder can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 

26.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

27.  The DSM fifth revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the 8h criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A, stressor:  The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) 

* Direct exposure 
* Witnessing, in person
* Indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental
* Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse).  This does not include indirect non-professional exposure through electronic media, television, movies, or pictures

	b.  Criterion B, intrusion symptoms:  The traumatic event is persistently re-experienced in the following way(s): (one required) 

* Recurrent, involuntary, and intrusive memories 
* Traumatic nightmares 
* Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness 
* Intense or prolonged distress after exposure to traumatic reminders 
* Marked physiologic reactivity after exposure to trauma-related stimuli 

	c.  Criterion C, avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required)

* Trauma-related thoughts or feelings
* Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations)

	d.  Criterion D, negative alterations in cognitions and mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required)

* Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs)
* Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous")
* Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences
* Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame)
* Markedly diminished interest in (pre-traumatic) significant activities
* Feeling alienated from others (e.g., detachment or estrangement)
* Constricted affect:  persistent inability to experience positive emotions

	e.  Criterion E, alterations in arousal and reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

* Irritable or aggressive behavior
* Self-destructive or reckless behavior
* Hypervigilance
* Exaggerated startle response
* Problems in concentration
* Sleep disturbance

	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. 

	g.  Criterion G, functional significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H, exclusion:  Disturbance is not due to medication, substance use, or other illness. 
28.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.  

29.  In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

30.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* Was the applicant's condition determined to have existed prior to military service?
* Was the applicant's condition determined to be incurred during or aggravated by military service?
* Do mitigating factors exist in the applicant's case?
* Did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* Was the applicant's misconduct premeditated?
* How serious was the misconduct?

31.  Although the DoD acknowledges some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the 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 PTSD or PTSD-related conditions 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 under other than honorable conditions characterization of service.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions (emphasis added).  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor 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.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct (emphasis added).

32.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend that the separation authority, narrative reason for separation, and SPD and RE codes for her discharge should be changed to AR 635-200, chapter 5 with appropriate SPD and RE codes and upgrade of her discharge because she was young; the characterization of service was not based on her entire record of service; her mental health history was not considered; and the separation authority exceeded its discharge authority.

2.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The applicant entered the RA at age 18.  She successfully completed training, was awarded MOS 92Y, promoted to SGT (E-5), and reenlisted in the RA on 
21 May 2010 at age 21.  She had served on active duty for more than 3 years before committing the serious offense that was punishable by court-martial and led to her discharge.  Thus, the contention that she was young/immature is not supported by the evidence of record.  Moreover, the contention that the serious offense she committed (that led to her discharge) is mitigated by her age is unequivocally rejected by the Board.

4.  The applicant was involved in an altercation with four female Soldiers inside a nightclub.  They were escorted outside and the women followed the applicant to her car.  The applicant states she was certain she would be assaulted.  She also states that, as she got to her car the four women were about 10 to 15 steps away (i.e., about 20 to 30 feet).

   a.  There is no evidence of record that shows the women prevented the applicant from entering her car and driving away.  In fact, the evidence of record shows the applicant reached into the car, grabbed a weapon, and fired it at the four women.  Thus, it is clear that the action taken by the applicant was excessive in response to the threat the approaching women imposed, particularly since the applicant clearly had the opportunity to get into her car and drive away.

   b.  The evidence of record shows, on 7 December 2012, the applicant pled guilty (emphasis added) to the charge of Aggravated Assault (four counts) for a "deferred adjudication" (i.e., a conviction is not entered).  If she successfully completes the terms of her sentence (i.e., 8 years of probation), the court will discharge the case without conviction.  Thus, the evidence of record shows that the applicant admitted to committing the offenses for which she was charged.

   c.  Counsel's contention that the separation authority acted precipitously and usurped HQDA authority because it did not seek guidance with respect to the First Offender Act having the effect of an acquittal was considered.

    	(1)  There is no evidence of record that shows the applicant's misconduct was the subject of judicial proceedings resulting in an acquittal or action having the effect thereof.

    	(2)  The applicant's administrative discharge was based on commission of a serious (civil) offense; it was not based on conviction by a civil court.

    	(3)  The applicant acknowledged her guilt when she entered her plea in order to obtain a deferred adjudication.  
   
    	(4)  Thus, there was no reason to suspend the separation action or consult with HQDA pending disposition of the civil case.

	d.  Counsel is correct that the applicable regulation provides that separation normally should not be based on conduct that has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.  However, the record indicates that applicant pled guilty to four aggravated assault charges and, pursuant to a plea negotiation made with the prosecution, was sentenced in accordance with Georgia's First Offenders Law.  The effect of the First Offenders Law is that "upon a plea of guilty … the court may … [d]efer further proceeding and place the defendant on probation." O.C.G.A. § 42-8-60 (2010).  Pursuant to that law, the court sentenced applicant to 8 years probation.  The record further establishes that applicant admitted in open court her guilt to four felony aggravated assault charges. 

	e.  The Board disagrees with counsel's assertion that pleading guilty to firing a weapon several times at four individuals is indicative of a disposition warranting retention in the Armed Forces.  Thus, the Board finds unpersuasive counsel's argument that applicant's case was disposed of in a manner indicating separation was unwarranted.  Given the language contained in the Georgia statute, it is probably more accurate to say that applicant's judicial proceeding was not entirely "disposed of" but was instead merely deferred pending termination of applicant's 8-year probation term.  The Board therefore finds that applicant's criminal case was not disposed of in a manner indicating separation was not warranted.  It also finds that her criminal case did not result in an acquittal or "action having the effect thereof."  The Board finds that no reasonable interpretation of the term "acquittal" would include a proceeding in which a defendant pleads guilty to an offense and is sentenced to 8 years of probation.  For these same reasons, the Board finds that the separation authority did not usurp HQDA's authority, or exceed its own, when it went forward with applicant's separation action.

	f.  The Board also does not agree with counsel when he asserts that applicant has "successfully completed" her "pretrial diversion program."  The record indicates that applicant still has several more years of probation before her 8 year sentence is complete.  There is no documentation in the record indicating that her probation term has been shortened or suspended.  Violation of her probation restrictions would presumably subject applicant to the criminal proceedings that are currently deferred.  But even if applicant had already completed her term of probation, the Board would still not agree with counsel's characterization that such a result should be deemed a disposition indicating separation was not warranted or that it is analogous to an acquittal.  Applicant's plea of guilty and the seriousness of the offenses to which she pled guilty indicate that separation from the Army was warranted in this case and that her case was not disposed of in a manner having the effect of an acquittal.  

	g.  Counsel also argues that applicant's mental health records should have been introduced at her separation board proceedings.  No rule or regulation, however, requires the admission of such evidence at an administrative separation board.  The decision to introduce such evidence, or to deliberately refrain from introducing it, would seem to rest with the applicant and her counsel. No evidence in the record suggests that applicant or her counsel tried to introduce such evidence but that the board refused to admit it for consideration. Given that tactical considerations often influence these decisions, the Board is reluctant to second-guess the applicant and her separation board counsel in this regard.  Finding no error with regard to the separation board proceedings, the Board declines to afford relief on these grounds.

	h.  Applicant also implies that separation proceedings in her case were initiated due to unlawful command influence and that the board proceedings themselves were "influenced" as well.  However, applicant has offered no proof of this implication and the Board finds it meritless. 

5.  The applicant's administrative discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the reason for and type of discharge directed were both proper and equitable.

6.  AR 635-200 provides that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged, as applicant was discharged, under Chapter 14 of the regulation.  (See AR 635-200, Chapter 14, paragraph 14-3a.)  Coupled with the serious nature of applicant's misconduct, this regulatory language informs the Board that applicant's current discharge characterization is not unwarranted in her case.  The Board therefore declines to upgrade applicant's discharge characterization.  

7.  The issue of the applicant's mental health history was carefully considered.

   a.  On 9 January 2011, the applicant committed aggravated assault on four fellow Soldiers by firing a weapon.

   b.  On 3 October 2011, she was evaluated and received a PTSD PCL-M score of 53 for PTSD symptoms (emphasis added).  She stated that she was experiencing difficulty with depression, anger, sleep, and irritability.  

   c.  On 26 October 2011, an evaluation by a civilian medical provider found that four traumatic events in the applicant's personal life, as well as events in Afghanistan, triggered PTSD symptoms (emphasis added), including nightmares, flashbacks, and sleep disturbances.

   d.  On 20 March 2012, the applicant was evaluated by a clinical psychologist.  She was specifically screened for PTSD and scored negative for PTSD.  She did not report any traumatic event(s) in Afghanistan (emphasis added); however, she did report stress stemming from her legal situation.

   e.  Thus, the evidence of record fails to show that the applicant's misconduct was due to a PTSD-related condition.  Moreover, the issue(s) of stress, anxiety, depression, or emotional instability could have been raised as a mitigating factor(s) during the ASB.  It is noted that the applicant acknowledges that her defense attorney represented her well, and that he presented the facts and evidence, along with character witness statements.   
   
   f.  On 28 May 2014, a Licensed Mental Health Counselor diagnosed her with PTSD.  At that time and for the first time, the applicant reported a traumatic event in Afghanistan.  She also reported her criminal and legal proceedings and civilian work environment as contributing factors to her stress and anxiety.

   g.  In her application to this Board, dated 27 June 2014, the applicant provides an account of her accomplishments and the recognition she received during her time in Afghanistan.  Again, she makes no mention of any traumatic event(s).  In fact, she recalls only fond memories during her time in Afghanistan.

8.  The evidence does not support the conclusion that the applicant's egregious misconduct (serious offense) that led to her discharge was related to or caused by any of her diagnosed medical conditions.

   a.  As a member of an aviation support battalion it is reasonable to believe the applicant regularly witnessed the departure, arrival, and over flight of helicopters. The evidence of record, particularly the applicant's own positive statements about her service in Afghanistan in her application to this Board, does not support a likely causal relationship of symptoms to her misconduct.  

   b.  Even with a diagnosis for PTSD, there is no evidence of record that the applicant's criminal misconduct (aggravated assault) has a relation to the PTSD or any stressors she claims.  

        (1)  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  However, Corrections Boards are instructed to exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct (emphasis added).

    	(2)  In addition, the evidence of record shows that Corrections Boards are instructed to exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions (emphasis added).

9.  Records show the applicant had three separate periods of enlistment in the RA during the period of service under review, as follows –

* enlisted on 12 September 2007 – honorably discharged on 17 November 2009 to reenlist
* reenlisted on 18 November 2009 – honorably discharged on 20 May 2010 to reenlist
* reenlisted on 21 May 2010 – discharged under other than honorable conditions on 5 September 2012

10.  The applicant's entire record of military service was considered.

   a.  She was awarded one individual award and she attained the rank of SGT (E-5) prior to reenlisting in the RA on 21 May 2010.

   b.  She completed less than 8 months of her 3-year active duty reenlistment obligation when she committed the serious offense that led to her under other than honorable conditions discharge and reduction to PVT/E-1. 

   c.  Thus, it is concluded that the applicant's record of service during the period under review (i.e., from 21 May 2010 to 5 September 2012) clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and she is not entitled to either a general, under honorable conditions discharge or an honorable discharge.
   
11.  The applicant's post-service conduct has been considered.  Based on the evidence of record, it is reasonable to conclude that the applicant's good post-service conduct is strongly influenced by the terms of her first offender agreement, which governs her behavior until December 2020.

12.  The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   a.  The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment.
	
   b.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

	c.  Therefore, it would be appropriate to correct item 18 of her DD Form 214 to show her continuous period of honorable active service (from 12 September 2007 through 20 May 2010).

13.  Therefore, in view of all of the foregoing, the applicant's DD Form 214 should be corrected, as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following entry to item 18 of her DD Form 214:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20070912 UNTIL 20100520."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the separation authority, narrative reason for separation, separation program designator code, and upgrade of her entire period of service to either a general discharge under honorable conditions discharge or an honorable discharge.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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ABCMR Record of Proceedings (cont)                                         AR20140012070



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