1. Applicant's Name: a. Application Date: 26 November 2018 b. Date Received: 16 January 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, use of the GI Bill to will allow the applicant to go back to school to better his life. The applicant states, when he was in the Army, he was young and dumb, but he has changed for the better and wants to show his mom and dad he can do it and do something with his life. In a records review conducted on 14 May 2021, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length of service and the circumstances surrounding the discharge (Limited Use evidence used in separation packet). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 28 August 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 July 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant did, on or about 9 May 2014, violate Section 3-3-23, Official Code of Georgia Annotated, by purchasing an alcoholic beverage for a person who was under the age of 21 years; Did, between on or about 9 May 2014 and on or about 12 May 2014, violate Section 40-6-10, Official Code of Georgia, by operating a motor vehicle without proof of insurance; Did, between on or about 9 May 2014 and on or about 12 May 2014, violate Section 40-2-8, Official Code of Georgia Annotated, by operating a motor vehicle without current revalidation decal on license plate; and, Did, on or about 21 March 2014, violate Section 3-3-23, Official Code of Georgia Annotated, by purchasing an alcoholic beverage for a person who was under the age of 21 years. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 July 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 August 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 November 2012 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 12B10, Combat Engineer / 1 year, 9 months, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 7 April 2014, for purchasing alcoholic beverage for a person who was under the age of 21 years (21 March 2014). The punishment consisted of a reduction to E-2; forfeiture of $400 pay (suspended); extra duty for 10 days; and restriction for 14 days (suspended). Record Of Supplementary Action Under Article 15, UCMJ, dated 16 May 2014, reflects the suspended portion of the punishment imposed on 7 April 2014, was vacated because the applicant purchased an alcoholic beverage for a person who was under the age of 21 years (9 May 2014). FG Article 15, dated 11 June 2014, for purchasing an alcoholic beverage for a person who was under the age of 21 years (9 May 2014); operating a motor vehicle without proof of insurance (between 9 and 12 May 2009); and, operating a motor vehicle without a current validation decal on license plate (between 9 and 12 May 2009). The punishment consisted of a reduction to E-1; forfeiture of $765 pay per month for two months (suspended); and, extra duty for 45 days. Report of Mental Status Evaluation, dated 24 June 2014, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. ASAP Outpatient Discharge Summary, dated 2 July 2014, reflects the applicant was a self- referral for using marijuana. The applicant was assessed and diagnosed with Cannabis Related Disorder. After being enrolled in ASAP he had completed all of Phase I group therapy and individual therapy. As a means of coping with his stress the applicant reported he likes to play basketball and work out during his spare time. At the time of his disenrollment from ASAP, the applicant had the diagnosis: 292.9 Cannabis Related Disorder. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: ASAP Outpatient Discharge Summary, dated 2 July 2014, reflects the applicant was a self-referral for using marijuana. The applicant was assessed and diagnosed with Cannabis Related Disorder. After being enrolled in ASAP he had completed all of Phase I group therapy and individual therapy. As a means of coping with his stress the applicant reported he likes to play basketball and work out during his spare time. At the time of his disenrollment from ASAP, the applicant had the diagnosis: 292.9 Cannabis Related Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming 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 Service member discharged from active military service within 15 years of the Service member'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) Paragraph 3-8a states A Soldier is entitled to an honorable characterization of service if limited-use evidence (see AR 600-85, chap 6) is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings. The separation authority will consult with the servicing Judge Advocate in cases involving limited use evidence. (5) 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. (6) 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. (7) Paragraph 14-12b, states a Soldier is subject to action per this section for a pattern of misconduct discreditable to military or civilian authorities and discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time- honored customs and tradition 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. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The separation packet indicates applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12b, by reason of pattern of misconduct, with a characterization of service of general (under honorable conditions). The applicant's separation packet contains a DA Form 7095 (ASAP Outpatient Discharge Summary) which reflects the applicant had been dis-enrolled from the ASAP. The government introduced this document into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. The applicant contends that he was young and immature at the time of the discharge. The applicant contends that he was young and immature at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (NO) The Board's BH Doctor reviewed all available medical records and found no BH diagnoses on the applicant. The applicant provided no documents that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. The ADRB determined that the applicant's characterization of service was inequitable based on ARBA's Legal opine that stated limited use of evidence was improperly introduced by the government during the separation process. c. The applicant contends that he was young and immature at the time of the discharge. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. d. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. The basis of separation is mitigated; therefore, the characterization will be upgraded and the applicant will be able to utilize all benefits associated with honorable discharge to include GI Bill benefits. e. Rationale for Decision: (1) The board voted to change the applicant's characterization of service because the government introduced limited use evidence into the discharge process revealing the applicant had self-referred to the Army Substance Abuse Program (ASAP) for substance abuse. This is limited use information as defined in AR 600-85. Use of this information mandates award of an honorable discharge. (2) The board voted to change the narrative reason to Misconduct (Minor Infractions) because the government improperly introduced limited use evidence into the separation process. (3) The SPD code associated with the new reason for discharge is JKN, and the RE code will not change as the accompanying code with a JKN code remains a "3." 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 AR20190002157 2