1. Applicant's Name: a. Application Date: 15 April 2019 b. Date Received: 19 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is honorable. The applicant requests a change to his narrative reason for discharge and to his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that the characterization of his wrongful discharge to include the separation authority, Chapter 13, reentry code 3, separation code JHJ, and narrative unsatisfactory performance are not reflective of the character of his service of honorable. He was discharged due to the negligence of his chain of command and their failure to follow regulation, as well as medical conditions occurring and worsening due to the condition of his military housing on Fort Leavenworth. Although granting an honorable discharge, the unethical practices of his unit in providing the statements resulting in his separation code and character narrative denied his eligibility for continued care through TAMP. The characteristics indicated above do not match the character of service of his wrongful discharge. There were medical conditions overlooked by his chain of command due to the deplorable conditions of military housing. The housing in which he resided with his family for over a year contained unsafe levels of mold spores that negatively affected his and his family's health, ultimately effecting his performance at work, this leading to his wrongful discharge. His chain of command also did nothing for rehabilitation and denied him on two or more occasions, the opportunity to attend promotion boards in which they claimed he failed to appear. In a records review conducted on 6 October 2021, and by a 5-0 vote, the Board determined the narrative reason for the applicant's separation is inequitable based on the applicant's length and quality of service, and prior period of honorable service. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, Chapter 5-17, and the narrative reason for separation to Condition, Not a Disability, with a corresponding separation code to JFV, and no change to the reentry eligibility (RE) code. 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: Unsatisfactory Performance / AR 635- 200 / Chapter 13 / JHJ / RE-3 / Honorable b. Date of Discharge: 14 February 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2019 (2) Basis for Separation: The applicant was informed of the following reason: for failure to overcome a bar to continued service. (3) Recommended Characterization: Honorable (4) Legal Consultation Date: 9 January 2019 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: NIF / Honorable 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 June 2016 / 5 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 124 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31E10, Internment/Resettlement Specialist, 91B10, Wheeled Vehicle Mechanic / 5 years, 5 months, 6 days d. Prior Service / Characterizations: RA, 9 September 2013 to 9 June 2016 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Physical Profile Record, dated 26 January 2018, which indicates the applicant was given a P-2 for Pauses in breathing during sleep. Chronological Record of Medical Care, dated 21 February 2018, makes reference to reported medical history with sleep apnea. Bar to Continue Service, dated March 2018, makes reference to the applicant being barred as a result of not meeting criteria for promotion to next higher rank. It was noted that the applicant did not maintain a AA Flag and was ineligible to attend the promotion board. CG Article 15, dated 19 April 2018 for failure to go at the time prescribed to his appointed place of duty 1 January 2018 and 26 January 2018, and dereliction in the performance of his duties 22 January 2018 and 26 January 2018. Rebuttal of Matters relating to an Article 15 that he was pending and his issues with Sleep Apnea. Medical documents submitted by the applicant from Saint Luke's Health System (Progress Notes), makes reference to the applicant having issues with Snoring, deviated nasal septum, adenoid hypertrophy, allergic rhinitis, sleep apnea, turbinate hypertrophy, nasal polyps, nasal trauma, lingual or palatine tonsil hypertrophy, elongated uvula/palate. Rebuttal of Matters for Separation Under Chapter 13, Unsatisfactory Performance, dated 22 January 2019. Several counseling statements reference recommendation for Bar to Continued Service and the applicant's inability to overcome the bar and other acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; Article 15 Rebuttal of Matters, dated 17 April 2018; and DD Form 214 for the period of service under review. 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 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) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under 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 this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (1) Paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. A general (under honorable conditions) discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17 unless properly notified of the specific factors in the service that warrant such characterization. (2) Paragraph 5-17 specifically provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability, which interferes with assignment to or performance of duty and requires that the diagnosis be so severe that the Soldier's ability to function in the military environment is significantly impaired. 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 "JFV" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-17, Condition, Not a Disability. e. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. Delete if NA. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. Delete if NA. 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 a change to his narrative reason for discharge and to his reentry eligibility (RE) code. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records shows that separation action was initiated against the applicant for failure to overcome a bar to continued service. The applicant was separated under the provisions of Chapter 13, AR 635-200 with an honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unsatisfactory Performance," and the separation code is "JHJ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The appropriate RE code is 3. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending that the characterization of his wrongful discharge to include the separation authority, Chapter 13, reentry code 3, separation code JHJ, and narrative unsatisfactory performance are not reflective of the character of his service of honorable. He was discharged due to the negligence of his chain of command and their failure to follow regulation, as well as medical conditions occurring and worsening due to the condition of his military housing on Fort Leavenworth. Although granting an honorable discharge, the unethical practices of his unit in providing the statements resulting in his separation code and character narrative denied his eligibility for continued care through TAMP. The characteristics indicated above do not match the character of service of his wrongful discharge. There were medical conditions overlooked by his chain of command due to the deplorable conditions of military housing. The housing in which he resided with his family for over a year contained unsafe levels of mold spores that negatively affected his and his family's health, ultimately effecting his performance at work, this leading to his wrongful discharge. His chain of command also did nothing for rehabilitation and denied him on two or more occasions, the opportunity to attend promotion boards in which they claimed he failed to appear. The applicant's contentions were noted; medical documents submitted by the applicant from Saint Luke's Health System (Progress Notes), makes reference to the applicant having issues with Snoring, deviated nasal septum, adenoid hypertrophy, allergic rhinitis, sleep apnea, turbinate hypertrophy, nasal polyps, nasal trauma, lingual or palatine tonsil hypertrophy, elongated uvula/palate. 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 was diagnosed with Sleep Apnea and Insomnia Disorder by the military, which, in the opinion of the Board's Medical Advisor, a voting member, could potentially mitigate the misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. Review of the VA medical records indicate that the BH condition which could mitigate the basis for discharge occurred during military service and has service-connected the applicant. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. Applicant's Sleep Apnea and Insomnia Disorder likely played a significant role in him receiving a narrative reason of unsatisfactory military performance. The portion of his unsatisfactory performance caused by his sleep conditions is mitigated. (4) Does the condition or experience outweigh the discharge? Partially. As some of his unsatisfactory military performance was due to his underlying sleep conditions, the Board determined that the narrative reason for discharge will be changed to Chapter 5-17, Condition, not a disability. b. Response to Contention(s): (1) The applicant seeks relief contending that the characterization of his wrongful discharge to include the separation authority, Chapter 13, reentry code 3, separation code JHJ, and narrative unsatisfactory performance are not reflective of the character of his service of honorable. He was discharged due to the negligence of his chain of command and their failure to follow regulation, as well as medical conditions occurring and worsening due to the condition of his military housing on Fort Leavenworth. Although granting an honorable discharge, the unethical practices of his unit in providing the statements resulting in his separation code and character narrative denied his eligibility for continued care through TAMP. The characteristics indicated above do not match the character of service of his wrongful discharge. There were medical conditions overlooked by his chain of command due to the deplorable conditions of military housing. The housing in which he resided with his family for over a year contained unsafe levels of mold spores that negatively affected his and his family's health, ultimately effecting his performance at work, this leading to his wrongful discharge. His chain of command also did nothing for rehabilitation and denied him on two or more occasions, the opportunity to attend promotion boards in which they claimed he failed to appear. The Board determined that the applicant's narrative reason was inappropriate, and therefore voted to change it to condition, not a disability. c. The Board determined the narrative reason for the applicant's separation is inequitable based on Sleep Apnea and Insomnia Disorder likely played a significant role in him receiving a narrative reason of unsatisfactory military performance, the applicant's length and quality of service, and prior period of honorable service. Therefore, the Board granted relief by changing the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and no change to the reentry eligibility (RE) code. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because it was already Honorable. (2) The Board voted to change the reason for discharge to Condition, Not a Disability due to his sleep apnea and insomnia likely causing his ability to perform his duties. The SPD code associated with the new reason for discharge is JFV. (3) The RE code will not change, because the applicant did not provide sufficient documentation to indicate that the underlying conditions have changed. The ADRB determined that the applicant should work through the process of obtaining a medical waiver if the applicant desires to reenlist. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason to: Condition, Not a Disability d. Change Authority to: AR 635-200, paragraph 5-17 e. Change SPD / RE Code to: JFV / 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 AR20190005238 2