1. Applicant's Name: a. Application Date: 18 October 2019 b. Date Received: 18 October 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable, a narrative reason change, and a change to the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, that the discharge was unjust, the applicant contends the charge of DUI-refusal was later rescinded. The applicant contends the case failed due to the fact the applicant had submitted a lawful police breathalyzer at the time of the arrest. The DUI-refusal charge was then reduced to a "failure to exercise due care" which hold the weight of a minor driving offense in the state of Georgia. The applicant accepts responsibility and regret the action of providing alcohol to minors; however, believes this mistake was not enough to present a case for separation under a general (under honorable conditions) discharge or a reentry code of 4. The applicant contends an alcoholic beverage was offered to minors who were living in the barracks; therefore, the applicant did not feel the need to ID their age due to the fact they had already been drinking. This poor lapse in judgement was witnessed by another Soldier who, rather than informing the applicant of their ages, reported the applicant to their chain of command. A week or so after the applicant was reprimanded, the same underage Soldiers were offered alcohol by a Squad Leader for their assistance in helping the squad leader move out of their home. This was the same Squad Leader who had given the applicant a negative counseling regarding the same incident covered in the Article 15 and was now committing the same offense as the applicant. This is why the applicant believes the separation should not be considered anything less than Honorable; and that the title of "Commission of Serious Offense" does not accurately reflect the information that was presented in the case under review. The applicant contends having the weight of this case lifted from their shoulders is important to the family as well. b. Board Type and Decision: In a records review conducted on 20 July 2022, 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, and post-service accomplishments. 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, 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, Paragraph 14-12c / JKQ / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 11 October 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: NIF; however, partial documents submitted by the applicant with the application indicates the applicant was informed; the basis of the separation was for having wrongfully refused a police officer's request to measure the alcohol content of the blood, breath, or urine on 11 March 2018, and on 28 May 2018, wrongfully providing alcoholic beverages to persons under 21 years of age in violation of Georgia Code Title 3-3-23(a)(1). (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 2014 / 4 years, 22 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 135 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C1V, Indirect Fire Infantryman / 4 years, 11 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (18 May 2017 to 4 September 2017) f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, ACM-CS, ASR, CIB, EIB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Richmond Hill Police Department Incident Report, dated 12 March 2018, which indicates the applicant was arrested based on the police officer coming to the conclusion that the applicant was driving under the influence from what he observed as how the applicant performed the Standardized Field Sobriety Test. The applicant was asked to submit to a preliminary breath test (PBT) and was noted as refusing; at which time, the applicant was placed under arrest for suspicion of driving under the influence. General Officer Memorandum of Reprimand, dated 14 March 2018, which indicates the applicant was reprimanded for failing to obey a police officer's lawful request to conduct a test to measure the alcohol content of breath, blood, or urine. At or about 1946 on 11 March 2018, in Richmond Hill, GA, local law enforcement arrested the applicant for refusing a police officer's request to measure the alcohol content of blood, breath, or urine, of the applicant. CG Article 15, dated 5 June 2018, for providing alcoholic beverages to persons under 21 years of age in violation of Georgia Code Title 3-3-23(a)(1). The punishment consisted of reduction to E-3 and extra duty and restriction for 14 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; partial separation document; document from the Court of Bryon County, Georgia; Record of Proceedings Under Article 15, UCMJ, unit clearance record; enlisted record brief; letters of support; and DD Form 214 for the period of service under review. The Court document submitted by the applicant indicates the applicant was ordered and adjudicated by the court that the defendant was hereby sentenced to confinement for a period of 12 days in the Bryon County Jail. However, it was further ordered by the court that the sentence may be served on probation; provided the said defendant complies with the following general and specific conditions herein imposed by the court as part of this sentence. (Specific Conditions of Sentence was not clearly readable), 6. POST SERVICE ACCOMPLISHMENTS: The applicant is in Texas pursuing a Master's Degree to become a licensed Physician Assistant, is very lucky to have a fiancé who supports, and has a son due to arrive any day. 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. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable 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. SUMMARY 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, a narrative reason change, and a change to the reentry eligibility (RE) code. The applicant's available record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) is void of the facts and circumstances concerning the events which led to the discharge from the Army. However, the applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct (serious offense), with a characterization of service of general (under honorable conditions). The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the 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 seeks relief contending that the discharge was unjust, the applicant contends the charge of DUI-refusal was later rescinded. The applicant contends the case failed due to the fact the applicant had submitted a lawful police breathalyzer at the time of the arrest. The DUI- refusal charge was then reduced to a "failure to exercise due care" which hold the weight of a minor driving offense in the state of Georgia. Evidence submitted by the applicant indicates separation action was initiated against the applicant for having wrongfully refused a police officer's request to measure the alcohol content of the blood, breath, or urine on 11 March 2018, and on 28 May 2018, wrongfully providing alcoholic beverages to persons under 21 years of age in violation of Georgia Code Title 3-3- 23(a)(1). Court document submitted by the applicant indicate the applicant was ordered and adjudicated by the court that the defendant / applicant was hereby sentenced to confinement for a period of 12 days in the Bryon County Jail. However, it was further ordered by the court that the sentence may be served on probation; provided the said defendant complies with the following general and specific conditions herein imposed by the court as part of this sentence. (Specific Conditions of Sentence was not clearly readable). The applicant's contentions were noted; however, the merit of these contentions cannot be established because the complete facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. It should also be noted; Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 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? No. The Board's Medical Advisor reviewed DoD and VA medical records and found the applicant had no mitigating BH diagnoses. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (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? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor that the available evidence did not support a conclusion that the applicant had any conditions that could outweighed the basis for applicant's separation - wrongful refusal of a police officer's request to measure the alcohol content of the blood, breath, or urine and wrongfully providing alcoholic beverages to persons under 21 years of age. b. Response to Contention(s): (1) The applicant seeks relief contending that the discharge was unjust and the charge of DUI-refusal was later rescinded. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the based on the applicant's length and quality of service, to include combat service, and post- service accomplishments. Therefore, the Board voted an upgrade to honorable, a narrative reason and RE code change is warranted. (2) The applicant contends the case failed due to the fact the applicant had submitted a lawful police breathalyzer at the time of the arrest. The DUI-refusal charge was then reduced to a "failure to exercise due care" which hold the weight of a minor driving offense in the state of Georgia. The Board considered this contention during proceedings and determined there is sufficient evidence to warrant an upgrade to the applicant's discharge. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and post-service accomplishments. 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, and the reentry code to RE-3. 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, and post- service accomplishments outweigh the applicant's misconduct of wrongful refusal of a police officer's request to measure the alcohol content of the blood, breath, or urine and wrongfully providing alcoholic beverages to persons under 21 years of age. 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 Board voted to change 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 / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20190013262 1