1. Applicant's Name: a. Application Date: 5 July 2019 b. Date Received: 12 July 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, he was released from active duty in December of 2018 after serving 16 years of service with distinction. He was an infantry Soldier with 27 months of deployment time. He has never received any disciplinary action prior to this incident and has trained thousands of Soldiers as a drill sergeant, range cadre and as an everyday leader. In July of 2017, he was involved in a shooting while trying to defend himself, resulting in two people being killed. He was arrested and charged with murder and is currently in jail. He states while under investigation he admitted to being a part of a motorcycle club. The name of the club is the Thunder guards and was chaptered out the Army in December 2018 for a serious offense for being in an extremist organization or gang. The applicant fought the chapter and asked for a hearing. He states his club was not a gang and never participated in any illegal activities. His club was not on any Fort Jackson or local law enforcement restriction list. At his hearing a Midland Gang Task Force Agent stated he had no knowledge of the applicant's club in Columbia. The applicant believes his attorney did not fight or represent him properly and only spoke to him twice. He states he has lost everything including his family and friends and now asks the board consider him for an upgrade so he can qualify for the needed tools to restart his life. In a records review conducted on 27 August 2021, 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: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-4 / Under Other Than Honorable b. Date of Discharge: 19 December 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: He committed a serious offense of being involved with known gang, and that said conduct was to the prejudice of good order and discipline in the armed forces. (3) Recommended Characterization: Under Other Than Honorable (4) Legal Consultation Date: 31 July 2018 (5) Administrative Separation Board: On 26 October 2018, the applicant was notified to appear before an administrative separation board and advised of rights. On 8 November 2018, the administrative separation board convened and the applicant counsel appeared. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. On 19 November, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 19 November2019 / Under Other Than Honorable 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 July 2014 / Indefinite b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B38 8R 2B, Infantryman / 15 years, 10 months, 15 days d. Prior Service / Characterizations: RA, 10 February 2003 - 9 May 2005 / HD, RA, 10 May 2005 - 24 June 2009 / HD RA, 25 June 2009 - 21 July 2014 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (8 August 2004 - 9 August 2005; 12 October 2006 - 31 December 2007) f. Awards and Decorations: ARCOM-4, AAM-5, NUC, AGCM-4, NDSM, ICM-3CS, GWOTEM, GWOTSM, KDSM, ASR, OSR-3, CIB, EIB g. Performance Ratings:16 November 2013 - 9 September 2014 / Among the Best 10 September 2014 - 8 September 2015 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: None Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Confined by Civil Authorities (CCA)" to "Present for Duty (PDY)," effective 9 August 2017; and, From "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)" effective 5 September 2017). Judge V. S., Richland/Hopkins Counties Magistrate, opined probable cause existed to believe SSG J. committed the offenses of Murder, Attempted Murder, and Misprision of Felony. SSG J. was arrested and taken to the Alvin S. Glenn Detention Center, wherein he would remain detained pending further court proceedings. i. Lost Time / Mode of Return: 470 days: (CCA, 5 September 2017 to 19 December 2018). This period is not annotated on the DD Form 214 block 29. / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 26 October 2018, 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: TBI. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; self-authored statement; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with 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 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (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 to honorable 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 his attorney did not fight for him. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he has 27 months of deployment time and has trained over a thousand Soldiers. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade will give him the tools to restart his life. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 has been diagnosed with Anxiety Disorder, a potentially mitigating BH condition. (2) Did the condition exist or experience occur during military service? Yes. Applicant's diagnosis of Anxiety Disorder was made during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While the applicant was diagnosed with Anxiety Disorder and possible TBI during his separation MSE, there is no documentation of any BH or neurological symptoms in his medical records. Additionally, the applicant received no BH or neurological services while on active duty. Without this information, no decision regarding medical mitigation can be made. (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 gang involvement, murder, attempted murder and misprision of felony outweighed the applicant's Adjustment Disorder, because of the egregiousness of the offenses. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The record confirms the applicant's discharge was appropriate because the quality of the applicant's 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 listed offenses, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends his attorney did not fight for him. Lack of legal representation does not warrant an automatic upgrade. The applicant did not provide any independent corroborating evidence for the Board's consideration that would prove the discharge improper or inequitable. (3) The applicant contends he has 27 months of deployment time and has trained over a thousand Soldiers. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. (4) The applicant contends an upgrade will give him the tools to restart his life. The Board does not grant relief to gain employment or enhance employment opportunities. Eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill or healthcare, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board denied the request upon finding the separation was both proper and equitable. The Board determined that the documentation contained in the AMHRR, as well as evidence submitted by the applicant, and the available medical evidence did not support a finding that the applicant's discharge was improper or inequitable. 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 applicant's characterization of service because, despite applying liberal consideration, there were no BH diagnoses which mitigated the gang involvement, murder, attempted murder and misprision of felony, nor were there any other mitigating circumstances provided by the applicant for the Board's consideration. The applicant did not supply sufficient independent corroborating evidence to support contentions, and the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, 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 / 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 AR20190012082 1