1. Applicant's Name: a. Application Date: 4 September 2019 b. Date Received: 10 September 2109 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is honorable. The applicant requests a narrative reason change to secretarial authority and the separation code (SPD). The applicant, through counsel, requests change to narrative reason for separation from "Substandard Performance" and SPD from "JHK" to reflect a reason for separation of "Secretarial Authority." The applicant was victimized by chain of command's error in discretion by ordering Soldier to take another record Army Physical Fitness Test (APFT) the month after Soldier failed APFT. The command failed to offer any numerous assistance programs available for Soldiers that are struggling with APFT. Applicant military career was wrongfully ended as a result of these APFT failures. Applicant has been inequitably stigmatized as a substandard Soldier as a result of command's errors. In a records review conducted on 20 April 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: Substandard Performance / AR 600-8- 24, Chapter 4-2A / JHK / Honorable b. Date of Discharge: 28 October 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 September 2016 (2) Basis for Separation: The applicant was informed to show cause for retention on active duty under the provisions of AR 600-8-24, paragraphs 4-2a for substandard performance of duty based on two consecutive failed APFT, which took place on dates: 5 January 2016 and 10 February 2016. (3) GOSCA Recommendation Date / Characterization: 24 March 2016 / Honorable (4) DA Board of Review for Eliminations: On 13 September 2016, the Army Board of Review for Eliminations considered the GOSCA's request to involuntary separate the applicant for substandard performance in accordance with AR 600-8-24, Chapter 4-2a. (5) Separation Decision Date / Characterization: 13 September 2019 / Honorable 4. SERVICE DETAILS: a. Date / Period of Appointment: 30 November 2015 / 10 months, 29 days b. Age at Appointment: / Education: 30 / Bachelor's Degree / 108 c. Highest Grade Achieved / MOS / Total Service: 2LT / 11B10, Infantryman / 10 months, 29 days d. Prior Service / Characterizations: DEP, 23 September 2006 - 25 October 2006 / NA RA, 26 October 2006 - 7 December 2010 / HD USARCG, 8 December 2010 - 29 November 2015 / NA (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ICM-2CS, ARCOM, AGCM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Developmental Counseling Forms, for APFT failure and Involuntary Separation Flag. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures; Enlisted Record Brief; case separation packet; eight letter of recommendations; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained employment as a Tactical Officer, Saw Loader and currently employed as a Security Guard. 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 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers. (1) Paragraph 1-23, provides the authorized types of characterization of service or description of separation. (2) Paragraph 1-23a, states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DODI 5200.02 and AR 380-67 for reasons that do not involve acts of misconduct for an officer. (3) Paragraph 1-23b, states an officer will normally receive a general (under honorable conditions) characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under general (under honorable conditions) normally appropriate when an officer: Submits an unqualified resignation; Separated based on misconduct; discharged for physical disability resulting from intentional misconduct or neglect; and, for final revocation of a security clearance. (4) Paragraph 1-23c, states a discharge under other than honorable conditions is an administrative separation from the service. A discharge certificate will not be issued. An officer will normally receive an under other than honorable conditions when he or she: Resigns for the good of the Service; is dropped from the rolls (DFR) of the Army in accordance with paragraph 5-9; (3) is involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODI 5200.02 and AR 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; and, is discharged following conviction by civilian authorities. (5) Chapter 4 outlines the rules and steps for eliminating officers for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. (6) Paragraph 4-2a, prescribes for the elimination of an officer for substandard performance of duty for: downward trend in over performance of duty; failure to keep pace or to progress with contemporaries; failure exercise necessary leadership or command; and, other reasons. (7) 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 "JHK" as the appropriate code to assign commissioned officers who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2a, substandard performance. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant through counsel requests a narrative reason change to secretarial authority and the separation code (SPD). The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant through counsel contends the narrative reason for the discharge should be changed. The applicant was separated under the provisions of Chapter 4, paragraph 4-2a, AR 600-8-24 with a honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Substandard Performance," and the separation code is "JHK." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates the 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 regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant through counsel contends the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 4, paragraph 4-2a, is "JHK." The applicant through counsel contends good service, including a combat tour. The applicants service accomplishments and the quality of service will be considered by the board according to the DODI 1332.28. The applicant through counsel contends he was victimized by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported being victimized. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant through counsel contends the command failed to offer any assistance or programs available for Soldiers that failed the APFT. The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and allowing the applicant to Retake the APFT. The applicant failed to respond appropriately to these efforts. 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? N/A. Applicant already holds an Honorable discharge, so there is no medical mitigation required for a characterization upgrade. (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. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention during proceedings, but ultimately determined the narrative reason for discharge is proper and equitable as the applicant did not perform the APFT to standard. (2) The applicant contends the SPD code should be changed. It should be noted that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty, and administratively linked to the reason for separation. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. (3) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. However, the applicant's Honorable discharge and narrative reason are both proper and equitable as the applicant did not perform to Army physical fitness standards. (4) The applicant contends victimized by members of the chain of command. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the discharge was proper and equitable. (5) The applicant contends the command failed to offer any assistance programs available for Soldiers that failed APFT. The Board considered this contention, ultimately the Board determined this contention alone did not warrant an upgrade. The discharge is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. 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 characterization of service due to it already being Honorable. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and 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 / Separation Order: No b. Change Characterization to: No Change 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 AR20190011749 1