1. Applicant's a. Application Date: 24 April 2019 b. Date Received: 29 April 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, his discharge for commission of a serious offense is unjust because it was due to a senior noncommissioned officer's belief that he spoke to him in a sarcastic manner. In a records review conducted on 4 August 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, prior period of honorable service, and the behavioral health circumstances surrounding the discharge. 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), with a corresponding separation code of 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 24 July 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 March 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 18 September 2017, the applicant disobeyed SSG R.S. by continuing to disrespect him when told to walk away. Additionally, the applicant, on divers occasions, between on or about 10 May 2017 and on or about 15 December 2017, the applicant failed to report to his appointed place of duty. (3) Recommended Characterization: General, under honorable conditions (4) Legal Consultation Date: 5 March 2018 (5) Administrative Separation Board: The applicant unconditionally waived his right to have his case determined by an administrative separation board on 1 June 2018 (6) Separation Decision Date / Characterization: 5 June 2018 / General, under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 February 2015 / 4 years b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B, Infantryman / 7 years, 9 months, 6 days d. Prior Service / Characterizations: RA, 19 October 2010 - 24 February 2015 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (15 May 2012 - 15 February 2013), Djibouti (5 October 2014 - 20 January 2015) f. Awards and Decorations: ARCOM-3, AAM-2, AGCM, NDSM, GWOTEM, GWOTSM, ACM-CS, ASR, OSR, NATO Medal, CIB, COA g. Performance Ratings: 2 January 2015 - 23 June 2010 / Among The Best 24 June 2015 - 22 June 2016 / Highly Qualified 23 June 2016 - 20 February 2017 / Qualified h. Disciplinary Action(s) / Evidentiary Record: The applicant was counseled on 10 May 2017 and 30 June 2017, for failure to report to his place of duty. On 25 September 2017, the applicant was counseled for failure to report; failure to obey an order or regulation; being insubordinate toward a warrant officer or NCO; and for provoking speeches or gestures. On 15 December 2017, the applicant was counseled for missing an appointment. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, DD Form 214 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) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c, states 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. 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 AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant contends his discharge for commission of a serious offense is unjust because it was due to a senior noncommissioned officer's belief that he spoke to him in a sarcastic manner. The record does not contain any indication or evidence of arbitrary or capricious actions by the applicant's chain of command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. 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 applicant held in-service diagnoses of Adjustment Disorder, Anxiety Disorder NOS, Generalized Anxiety Disorder (GAD), ADHD, and Alcohol Dependence. The applicant is post-service connected for Anxiety Disorder NOS with additional diagnoses of Major Depressive Disorder (MDD), GAD, Adjustment Disorder, and Alcohol Abuse. (2) Did the condition exist or experience occur during military service? YES. The applicant held in-service diagnoses of Adjustment Disorder, Anxiety Disorder NOS, Generalized Anxiety Disorder (GAD), ADHD, and Alcohol Dependence. (3) Does the condition or experience actually excuse or mitigate the discharge? NO. While liberal consideration was applied, the applicant's diagnoses do not cause an individual to avoid work, be unaware of time, have difficulty with authority, or understand the implications and consequences of engaging in provoking behaviors. (4) Does the condition or experience outweigh the discharge? YES. The Board determined that relief was warranted based on the OBHI diagnoses and Brigade Commander's HD recommendation. b. The applicant contends his discharge for commission of a serious offense is unjust because it was due to a senior noncommissioned officer's belief that he spoke to him in a sarcastic manner. The Board considered this contention and voted the discharge too hard for circumstances leading to discharge. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, prior period of honorable service, and the behavioral health circumstances surrounding the discharge, and the Brigade Commander's recommendation for HD. d. Rationale for Decision: (1) The board voted to change the applicant's characterization of service to Honorable because the applicant's length and quality of service, to include combat service, prior period of honorable service, and the behavioral health circumstances surrounding the discharge, and the Brigade Commander's HD recommendation. (2) The board voted to change the reason to Misconduct (Minor Infractions) under the same pretexts, thus the reason the applicant was discharged is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (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: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20190007201 1