1. Applicant's Name: a. Application Date: 3 June 2019 b. Date Received: 10 June 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 until came under the command of the California National Guard. The Brigade Commander posted the policy personnel could have no more than two beers on Friday and Saturday nights. The policy was ignored from the start and abused by all ranks, to include the officer ranks. The applicant and a junior officer in the battalion, were targeted by the Battalion Commander as a means to make an example. This action was unjust because only two individuals were punished for activity, which was routinely allowed by other members of the Battalion. In a records review conducted on 29 September 2021, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, combat related PTSD, Adjustment Disorder, and prior period of Honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed 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, and the reentry code to RE-3. 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-4 / General (Under Honorable Conditions) b. Date of Discharge: 23 November 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 May 2017 (2) Basis for Separation: The applicant was informed of the following reasons: Failed to obey the U.S. European Command General Order 1 for Ukraine when he consumed more than two alcoholic beverages in a 24- hour period. On at least one occasion, Soldiers perceived him as being drunk and disorderly. Also, violated the Battalion Commander's personal conduct policy when he wore civilian clothes when not authorized, violated the Battalion's pass policy, and failed to conduct himself in a manner that supports the good order and discipline expected of Soldiers when he visited adult strip clubs in Ukraine without authorization. Used or permitted the use of an Army-owned or controlled non-tactical vehicle for personal errands and side trips for unofficial purposes in violation of AR 58-1, Management, Acquisition, and Use of Motor Vehicles, dated 12 June 2014, paragraphs 2-3 and 2-4. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 17 May 2017 (5) Administrative Separation Board: On 12 July 2017, the applicant was notified to appear before an administrative separation board and advised of rights. On 28 August 2017, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of general (under honorable conditions). On 4 October 2017, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 4 October 2017 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 October 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 36 / Baccalaureate Degree / 114 c. Highest Grade Achieved / MOS / Total Service: E-7 / 11C40 8R B1, Indirect Fire Infantry / 15 years, 19 days d. Prior Service / Characterizations: RA, 5 November 2002 - 14 April 2006 / HD RA, 15 April 2006 - 26 February 2011 / HD RA, 27 February 2011 - 7 October 2014 / HD e. Overseas Service / Combat Service: Korea, Ukraine, SWA / Iraq (28 November 2005 - 8 August 2006); Afghanistan (12 March 2008 - 14 March 2009; 25 August 2010 - 24 August 2011) f. Awards and Decorations: ACM-3CS, BSM, PH, ARCOM-6, AAM-5, MUC-3, VUA, AGCM-4, NDSM, GWOTEM, GWOTSM, KDSM, ICM-2CS, NCOPDR-3, ASR, OSR-3, NATOMDL, CIB g. Performance Ratings: 1 November 2005 - 31 October 2008 / Among The Best 1 November 2008 - 31 October 2011 / Among The Best 1 November 2011 - 31 October 2014 / Among The Best 1 November 2014 - 9 June 2015 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Memorandum dated 2 July 2016, relief for cause, shows the applicant violated the personal conduct policy dated 10 March 2016, by knowingly visiting a Gentlemen's Night Club and took unauthorized trips to L'viv, Ukraine. General Officer Memorandum of Reprimand, dated 8 November 2016, reprimanded the applicant for failing to obey a lawful general order, for failing to obey the Battalion Commander's personal conduct policy, for being drunk, and for conduct unbecoming an officer and a gentleman. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 23 March 2017, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; can appreciate the difference between right and wrong; and meets medical retention requirements. Diagnoses: AXIS 1: History of EBH treatment for Depression and Insomnia; History of Alcohol Use Disorder; Chart DX of PTSD. 5. APPLICANT-PROVIDED EVIDENCE: 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), 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 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. 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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, the alcohol policy was ignored and abused by all ranks, to include officer ranks. Soldiers with similar offenses were allowed to stay in the Army. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends he was targeted by the Battalion Commander as a means to make an example. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 Adjustment Disorder, Insomnia, Alcohol Dependence, and PTSD with involvement with FAP as a perpetrator and ASAP 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 Adjustment Disorder, Insomnia, Alcohol Dependence, and PTSD 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. The service-connected PTSD is only partially mitigating for drinking, drunk, and disorderly. The applicant's offenses of wearing civilian clothes when not authorized, and visited adult strip clubs without authorization are not medically mitigated, as there is no nexus between these behaviors and the BH condition. (4) Does the condition or experience outweigh the discharge? Partially. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the service- connected PTSD is only partially mitigating for drinking on deployment, drunk, and disorderly. The applicant's offenses of wearing civilian clothes when not authorized, and visited adult strip clubs without authorization are not medically mitigated, as there is no nexus between these behaviors and the BH condition. b. Response to Contention(s): (1) The applicant contends, the alcohol policy was ignored and abused by all ranks, to include officer ranks. Soldiers with similar offenses were allowed to stay in the Army. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. (2) The applicant contends he was targeted by the Battalion Commander as a means to make an example. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command and the applicant did not support this contention with any evidence. c. The Board majority granted the request upon finding the separation is now inequitable. The applicant held an in-service OBHI diagnoses including PTSD, mitigated part of the basis for separation. d. Rationale for Decision: (1) The majority of the Board determined the discharge is inequitable based on the applicant's length and quality of service, combat related PTSD, combat wounded, mitigating drinking on deployment and being disorderly - part of the basis for separation. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. (2) The Board voted to change the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding SPD code of JKN. (3) The Board voted to upgrade the RE-code to RE-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 / RE-3 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 AR20190009614 1