1. Applicant's Name: a. Application Date: 1 August 2019 b. Date Received: 13 August 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 requests an upgrade to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, the discharge does not reflect the thirteen years of honorable service. The misconduct was an isolated incident which had a snowball effect and led to applicant's separation. Applicant's entire career was not taken into account when deciding applicant's characterization of discharge, only the isolated incident. Applicant had may accolades during applicant's service. In a records review conducted on 11 March 2022, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service and the circumstances surrounding the discharge (PTSD diagnosis). 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), and 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 / Under Other Than Honorable Conditions b. Date of Discharge: 11 June 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 16 October 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On 12 August 2018, through neglect, the applicant missed the movement of Air France Flight 682 which applicant was required in the course of duty to move; on 7 August 2018, through neglect, the applicant discharged a partner force's AK47 on the range in the direction of a partner force; on 12 August 2018, the applicant disobeyed a direct order; on 12 August 2018, the applicant assaulted a Parisian Police Officer by kicking the officer while being restrained; and on 12 August 2018, the applicant became belligerent towards police officials by using racial slurs when they were trying to retrain applicant. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 23 October 2018 (5) Administrative Separation Board: On 1 February 2019, an administrative separation board found by a preponderance of the evidence the allegations that the applicant missed the movement of Air France Flight 682 through neglect; the applicant, through negligence, discharged a partner force's AK47 on the range in the direction of a partner force; the applicant disobeyed a direct order; the applicant assaulted a Parisian Police Officer by kicking him; and the allegation the applicant became verbally belligerent towards police officials by using racial slurs when they were trying to restrain applicant. The board recommended the applicant be separated from the U.S. Army with an Under Other Than Honorable Conditions characterization of service. (6) Separation Decision Date / Characterization: 9 May 2019 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 October 2014 / 6 years b. Age at Enlistment / Education / GT Score: 21 / 1-year College / 120 c. Highest Grade Achieved / MOS / Total Service: E-6 / 18B3P, Special Forces Weapons Sergeant / 12 years, 11 months, 22 days d. Prior Service / Characterizations: RA, 20 June 2006 - 29 October 2014 / HD e. Overseas Service / Combat Service: Korea, SWA, Africa / Iraq (24 March 2007 - 20 November 2007), Afghanistan (3 March 2009 - 4 March 2010), Kenya (3 July 2017 - 1 September 2017), Djibouti (15 June 2018 - 15 September 2018) f. Awards and Decorations: ARCOM-5, AAM, MUC, VUA-2, AGCM-4, NDSM, GWOTSM, KDSM, ACM-CS-2, ICM-CS, NCOPDR-2, ASR, OSR, NATO Medal, CIB, Special Forces Tab, Military Freefall Parachutist Badge, Parachutist Badge, Air Assault Badge g. Performance Ratings: 1 September 2009 - 26 April 2010 / Fully Capable 27 April 2010 - 26 April 2011 / Fully Capable 27 April 2011 - 1 February 2012 / Among The Best 2 February 2012 - 1 February 2013 / Fully Capable 2 February 2013 - 30 June 2013 / Among The Best 1 July 2013 - 15 August 2014 / Among The Best 27 January 2017 - 8 May 2018 / Highly Qualified 9 May 2018 - 8 September 2018 / Did Not Meet Standard h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 16 October 2018, reflects the applicant did on or about 12 August 2018, through neglect, missed the movement of Air France Flight 682 which he was required in the course of duty to move and unlawfully strike a Parisian Police Officer, by kicking the officer; on or about 20 June 2018, as a result of wrongful previous overindulgence in intoxicating liquor or drugs, was incapacitated for the proper performance of his duties; on or about 12 August 2018, was drunk and disorderly; and on or about 7 August 2018, through negligence discharged a partner force's AK47 on the range in the direction of a partner force. The punishment consisted of reduction to sergeant/E-5; forfeiture of $1,655 pay per month for 2 months, suspended, to be automatically remitted if not vacated on or before 18 April 2019; extra duty for 45 days; restriction of 45 days, suspended, to be automatically remitted if not vacated on or before 18 April 2019; and an oral reprimand. The applicant was counseled on more than one occasion for various forms of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, 162 pages of documents to include accolades, NCOERs, counseling forms, character letters, awards, and proof of deployments. 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) 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, 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. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant contends the discharge does not reflect the thirteen years of honorable service. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant contends the misconduct was an isolated incident which had a snowball effect and led to applicant's separation. The discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 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, applicant submissions and third party statements, and found the applicant was diagnosed with PTSD, which, in the opinion of the Board's Medical Advisor, after applying liberal consideration, could potentially mitigate a discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor opined that the PTSD partially mitigates missing movement of Air France Flight 682, discharging a partner force's AK47 on the range in the direction of a partner force, disobeying a direct order, assaulting a Parisian Police Officer by kicking the officer while being restrained, being belligerent towards police officials by using racial slurs, and alcohol use. Specifically, the nexus between trauma and substance use mitigates the substance related behavior. However, the applicant's negligent discharge is unrelated to trauma and did not occur in the course of substance use. (4) Does the condition or experience outweigh the discharge? Yes. The Board considered the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant had a condition or experience that completely outweighed the basis for separation. b. Response to Contention(s): (1) The applicant contends the discharge does not reflect the 13 years of honorable service. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's PTSD, length and quality of service, including combat service. (2) The applicant contends the misconduct was an isolated incident which had a snowball effect and led to applicant's separation. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, length and quality of service, including combat service. c. The majority of the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service and the circumstances surrounding the discharge (PTSD diagnosis). 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), and a corresponding separation code of JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had PTSD which mitigated the applicant's misconduct of missing movement of Air France Flight 682, discharging a partner force's AK47 on the range in the direction of a partner force, disobeying a direct order, assaulting a Parisian Police Officer by kicking the officer while being restrained, being belligerent towards police officials by using racial slurs, and alcohol use. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge 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 AR20190013216 2