1. Applicant's Name: a. Application Date: 26 March 2019 b. Date Received: 27 March 2019 c. Counsel: 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, the truth of the matter is that he was the victim of a domestic assault. The applicant was falsely accused of assault in the underlying incident. The alleged victim in his case made false allegations that led directly to his Article 15 proceeding and his discharge with an unfavorable characterization of service. The applicant requests a review of his record to determine his eligibility for an upgraded characterization of service. The applicant further details the incident, which led to his discharge in a self-authored statement provided with the application. In a records review conducted on 25 August 2021, and by a 3-2 vote, the Board determined the characterization was improper. The record shows the government introduced into the discharge packet the DA Form 8003, indicating self-referral to ASAP. That evidence is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 15 April 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 March 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On 5 December 2015, he willfully disobeyed a lawful command from a superior commissioned officer. On 11 November 2015 and on 5 December 2015, he was drunk and disorderly. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 8 March 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 March 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 October 2013 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 124 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 6 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Army Substance Abuse Program (ASAP) Enrollment form, dated 16 October 2015, reflects the applicant self-referred in the ASAP. CG Article 15, dated 14 December 2015, for willfully disobeying a lawful command not to drink alcohol (11 November 2015); and, drunk and disorderly conduct (11 November 2015). The punishment consisted of a reduction to E-3; extra duty and restriction for 14 days; and, written reprimand. FG Article 15, dated 29 January 2016, for willfully disobeying a lawful command (5 December 2015). The punishment consisted of a reduction to E-1; forfeiture of $778 pay per month for two months; and, extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 16 December 2015, 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. The applicant was diagnosed with: Alcohol abuse, uncomplicated. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; self-authored statement; Law Enforcement Report with allied documents; case separation packet. 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), 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) 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 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends he was the victim in the incident and the false allegations against him led to his punishment and subsequent discharge from the Army. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant's separation packet contains a DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment form) which reflects the applicant self-referred to ASAP. The government introduced these documents 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. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant held in-service diagnoses of Adult Antisocial Behavior, Adjustment Disorder, Dextromethorphan Use Disorder, and Alcohol Use Disorder. The applicant was involved in Intimate Pattern Violence (IPV) as the perpetrator. Post-service, the applicant is not service connected. VA diagnoses include Mood Disorder NOS, Adjustment Disorder, and suspected Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant's records reflect an Adjustment Disorder and Antisocial Behaviors aligning with the VA suspected Personality Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, an Adjustment Disorder does not interfere with an individual's cognitive capacity to make conscious choices with understanding of the ramifications. Rather, the applicant's Adult Antisocial Behavior and VA suspected Personality Disorder better explain the misconduct; however, this is not a psychiatric illness rendering an individual unable to make decisions. Accordingly, there is no medical mitigation. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses of disobeying a lawful order and drunk and disorderly conduct outweighed the applicant's Adult Antisocial Behavior, Adjustment Disorder, Dextromethorphan Use Disorder, and Alcohol Use Disorder because they do not interfere with an individual's cognitive capacity to make conscious choices with an understanding of the ramifications. b. The applicant contends he was the victim in the incident and the false allegations against him led to his punishment and subsequent discharge from the Army. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The record shows a CG and FG Article 15 with the offenses listed. However, the Board determined that more likely than not the government presented Limited Use evidence during separation proceedings, requiring an Honorable upgrade by regulation. c. The Board determined the characterization was improper. The record shows the government introduced into the discharge packet the DA Form 8003, indicating self-referral to ASAP. That evidence is limited use information as defined in AR 600-85 and is protected evidence. Use of this information mandates award of an honorable characterization of service. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable due to the inclusion of limited use evidence in separation proceedings. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable 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 AR20190004224 6