1. Applicant's Name: a. Application Date: 30 September 2019 b. Date Received: 3 October 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, that he served honorably from 2007 to 2011, he received a driving under influence (DUI) with a .09 BAC in a state with a BAC of .08 (Washington State). The applicant pled guilty in 2009 so that he could deploy with his unit to Iraq. He served in Iraq from 2009 until 2010 with the US Army 5th Battalion 20th Infantry Regiment which was a one- year assignment. In 2016 the Department of Veterans Affairs evaluated him and he was awarded 100 percent service connected disability for PTSD, this is permanent and total. The applicant received his DD Form 214 while on terminal leave, and did not know that he was going to receive a general (under honorable conditions discharge) or he would have fought it. In a records review conducted on 8 June 2022, and by a 4 - 1 vote, the majority of the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (DUI received prior to entering Active Duty included on the separation packet). 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. 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 (Civil Conviction) / AR 635-200 / Chapter 14, Sec II / JKB / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 24 March 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 January 2011 (2) Basis for Separation: The applicant was informed of the following reason: for having been convicted by a civil court for driving under the influence (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 7 February 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 February 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 May 2007 / 4 years, 18 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K20, M1 Armor Crewman / 3 years, 10 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (4 August 2009 to 21 July 2010) f. Awards and Decorations: ARCOM, AAM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: 1 December 2009 to 30 November 2010, Marginal h. Disciplinary Action(s) / Evidentiary Record: Olympia Municipal Court Pre-Trial Order/Judgment and Sentence documents relating to the applicant's DUI and punishment. Army Substance Abuse Program (ASAP) Enrollment, dated 27 October 2010 which indicates the applicant was command referred and made reference to civilian arrest (DUI) 20 June 2009 and July 2005. The applicant 2x DUI charge in 5 years. DA Form's 4187 (Personnel Action) indicating the applicant's duty status changed from: Present for Duty to Confined, effective 28 October 2010; and Confined to Present for Duty, effective 15 November 2010 i. Lost Time / Mode of Return: Civilian Confinement for 18 days (28 October 2010 to 14 November 2010). Result of having been convicted by a civil court for driving under the influence. j. Diagnosed PTSD / TBI / Behavioral Health: NIF; however, the Summary of Benefits submitted by the applicant from the Department of Veterans Affairs, dated 25 July 2021, indicate the applicant has been awarded 100 percent service-connected disability effective 18 May 2016. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; recommendation and certificate for award of the ARCOM; verification of military experience and training; Soldiers Deployment History Out-processing Report; Summary of Benefits from the Department of Veterans Affairs; and DD Form 214 for the period of service under review. 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) Section II, Paragraph 14-5, prescribes conditions that subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (8) Paragraph 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. e. 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. f. 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, II, misconduct (civil conviction). 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. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR indicates separation was initiated against the applicant for having been convicted by a civil court for driving under the influence. Army Regulation 635-200, in pertinent part, stipulates a Soldier may be separated when initially convicted by civil authorities, or when action is taken 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 six months or more, without regard to suspension or probation. The applicant seeks relief contending that he served honorably from 2007 to 2011, he received a DUI with a .09 BAC in a state with a BAC of .08 (Washington State). He pled guilty in 2009 so that he could deploy with his unit to Iraq. He served in Iraq from 2009 until 2010 with the US Army 5th Battalion 20th Infantry Regiment which was a one-year assignment. He received his DD Form 214 while on terminal leave, and did not know that he was going to receive a general (under honorable conditions discharge) or he would have fought it. The applicant's contentions were noted; however, evidence of record indicates on 25 January 2011, the applicant was informed by his unit commander that separation action was being initiated for him having been convicted by a civil court for driving under the influence. It was noted that the recommended characterization be general (under honorable conditions). Evidence shows that the applicant acknowledged receipt of the notification and that he had been advised of his right to consult with counsel prior to making any election of rights. The applicant contends that in 2016 the Department of Veterans Affairs evaluated him and he was awarded 100 percent service connected disability for PTSD, this is permanent and total. The independent document submitted by the applicant from the Department of Veterans awarding him 100 percent service-connected disability was noted. However, it should also be noted the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. Applicant has been diagnosed with PTSD, a potentially mitigating BH condition. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection of 100% for PTSD establishes that the condition is related to military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant does not have a mitigating BH condition. While he has been service connected for PTSD related to his deployment to Iraq, this SC diagnosis of PTSD does not mitigate his DUI because the DUI occurred prior to the applicant's deployment and development of PTSD. Consequently, Liberal Consideration does not apply. (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, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical condition of PTSD completely outweighed the basis for applicant's separation for having been convicted by a civil court for driving under the influence. b. Response to Contentions: (1) The applicant seeks relief contending that he served honorably from 2007 to 2011, he received a DUI with a .09 BAC in a state with a BAC of .08 (Washington State). The applicant pled guilty in 2009 so that he could deploy with his unit to Iraq. He served in Iraq from 2009 until 2010 with the US Army 5th Battalion 20th Infantry Regiment which was a one-year assignment. The majority of the Board determined this contention was valid and voted to upgrade the characterization of service due to sufficient evidence of in-service mitigating factors and matters surrounding the discharge. (2) He received his DD Form 214 while on terminal leave, and did not know that he was going to receive a general (under honorable conditions discharge) or he would have fought it. 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 length and quality of service, combat service, and matters surrounding the discharge mitigating the DUI basis for separation. (3) The applicant contends that in 2016 the Department of Veterans Affairs evaluated him and he was awarded 100 percent service connected disability for PTSD, this is permanent and total. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the applicant's PTSD does not outweigh or mitigate the basis for separation. 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, the circumstances surrounding the discharge (DUI received prior to entering Active Duty included on the separation packet). d. Rationale for Decision: (1) The majority of the Board voted to change the applicant's characterization of service to Honorable because of the applicant's record of service, in-service mitigating factors, and matters surrounding the discharge (DUI received prior to entering Active Duty included on separation packet, applicant plead guilty to second DUI [occurred in-service] to deploy with unit, and was sentenced in civilian court after return from deployment) mitigated the applicant's misconduct of DUI. Thus the prior characterization is no longer appropriate. (2) The majority of 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 / Separation Order: 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 DUI - Driving Under Influence 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 AR20190014847 1