1. Applicant's Name: a. Application Date: 8 October 2019 b. Date Received: 21 November 2019 c. Previous Records Review: 2 June 2017, AR20160003861 d. 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. The applicant seeks relief contending, in effect, an upgrade is based on serving over seven years of honorable service and the discharge was based on fraternization for marrying the ex- spouse, SGT J.S., who was assigned to MEDCOM and the applicant was assigned to a FORSCOM unit. The applicant understands the regulation on fraternization was updated in November of 2014 but was unaware of the changes until after the marriage. The applicant should have been aware of the changes as an NCO. The applicant contends losing his educational benefits and not receiving an honorable discharge after serving honorably in Afghanistan is unjust. b. Board Type and Decision: In a records review conducted on 19 September 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 the circumstances surrounding the discharge (OBHI, IPV and PTSD diagnoses). 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. The Board determined the RE code was proper and equitable and voted not to change it. Please see Section 9 (10 for PA) (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-3 / General (Under Honorable Conditions) b. Date of Discharge: 19 November 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 August 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 26 June 2015, the applicant forged the signature of a superior commissioned officer; On 23 March 2015, the applicant willfully disobeyed a superior commissioned officer; On 22 March 2015, the applicant failed to obey a lawful general regulation; and On 22 March 2015, the applicant made a false official statement to a noncommissioned officer. (3) Recommended Characterization: General (Under Honorable Conditions); the battalion commander recommended an honorable characterization of service, (4) Legal Consultation Date: 8 September 2015 (5) Administrative Separation Board: On 8 September 2015, the applicant conditionally waived consideration of the case by an administrative separation board, contingent upon receiving a characterization of service no less favorable than honorable. On 27 September 2015, the separation approving authority denied the applicant's request to conditionally waive consideration of the case by an administrative separation board contingent upon receiving a discharge no less than honorable. The case was referred to an administrative separation board. On 29 October 2015, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 2 November 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 January 2011 / 6 years (NIF, but according to ERB ETS date of 17 January 2017, and Commander's Report memorandum) b. Age at Enlistment / Education / GT Score: 21 / GED / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19D10, Calvary Scout and 92Y10, Unit Supply Specialist / 7 years, 5 months, 1 day d. Prior Service / Characterizations: RA, 19 June 2008 - 17 January 2011 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (21 July 2010 - 16 July 2011) f. Awards and Decorations: ACM-2CS, JSCOM, ARCOM, AAM-5, NDSM, NATO MDL, ASUA, AGCM-2, GWOTSM, NCOPDR, ASR, OSR-2 g. Performance Ratings: 1 June 2012 - 31 August 2013 / Marginal 1 September 2013 - 31 August 2014 / Fully Capable 1 September 2014 - 15 April 2015 / RFC, Marginal (Service School Academic Evaluation) 26 February 2013 - 21 March 2013 / WLC, Failed to Achieve Course Standards (Service School Academic Evaluation) 8 October 2013 - 7 November 2013 / WLC, Exceeded Course Standards h. Disciplinary Action(s) / Evidentiary Record: Application for Emergency Relief Funds, dated 26 June 2015, with email correspondence, dating from 29 June 2015 to 6 July 2015, between an AER Specialist and the applicant's Troop Commander. FG Article 15, dated 6 May 2015, for disobeying a superior commissioned officer on 23 May 2015, to have no contact with SPC J.S.; violating a general regulation on 22 March 2015, by wrongfully dating a junior enlisted Solder while as an NCO; and making a false official statement to an NCO, SSG M.D. on 22 March 2015. The punishment consisted of a reduction to E-4; forfeiture of $1,225 pay per month for two months; extra duty for 28 days; and an oral reprimand. Marriage License, dated 23 March 2015, reflecting marriage of the applicant and SPC J.S.S. Five Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation (MSE), dated 7 May 2015, 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 MSE included a diagnosis of an adjustment disorder with depressed mood (per AHLTA). Report of Medical Assessment, dated 13 May 2015, noted, in pertinent part, "Depression" and "Sleep Disorder." Report of Medical History, dated 13 May 2015, noted the applicant being treated for behavioral health issues listed at item 17a thru 17f, by a physician assistant. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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), 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: e. 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) 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. (5) 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. (6) 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. 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 "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). g. 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-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. 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 and the issues submitted with the application were carefully reviewed. The applicant contends an upgrade is based on serving over seven years of honorable service and the discharge was based on fraternization for marrying the ex-spouse, SGT J.S., who was assigned to MEDCOM and the applicant was assigned to a FORSCOM unit. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends losing his educational benefits and not receiving an honorable discharge after serving honorably in Afghanistan is unjust. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. Furthermore, the Board does not grant relief to gain employment or enhance employment opportunities. Eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. Further, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support the issue of unjust discharge. The applicant's Article 15 and numerous negative counseling statements justify serious incidents of misconduct. The applicant's statements alone do not overcome the government's presumption of regularity. The record does not contain any evidence of arbitrary or capricious actions by the command and it appears that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): None c. Counsel / Witness(es) / Observer(s): 10. 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 and found that the applicant has the following potentially-mitigating diagnoses/experiences: IPV and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found IPV occurred in the Army. VA service connection (70%) of PTSD establishes that the condition began while in military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that that the applicant has two BH conditions/experiences, PTSD and IPV, which mitigate some of applicant's misconduct. As there is a nexus between PTSD/IPV and difficulty with authority figures, there is a nexus between these two conditions and the applicant's disobeying of orders. Neither condition, however, mitigates the offenses of forging a signature or lying to an NCO. (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 the applicant's IPV and PTSD outweighed the basis for applicant's separation - forged a signature, willfully disobeyed a commissioned officer, failed to obey a lawful general regulation, and made a false official statement b. Response to Contention(s): (1) The applicant contends an upgrade is based on serving over seven years of honorable service and the discharge was based on fraternization for marrying the ex-spouse, SGT J.S., who was assigned to MEDCOM and the applicant was assigned to a FORSCOM unit. 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, to include combat service, and the circumstances surrounding the discharge (OBHI, IPV and PTSD diagnoses) outweighing the applicant's forging a signature, willfully disobeying a commissioned officer, failure to obey a lawful general regulation, and making a false official statement as the basis for the separation. (2) The applicant contends losing educational benefits is unjust. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, 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. (3) The applicant contends not receiving an honorable discharge after serving honorably in Afghanistan is unjust. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. c. 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 (OBHI, IPV and PTSD diagnoses). 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. The Board determined the RE code was proper and equitable and voted not to change it. 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 the circumstances surrounding the discharge (OBHI, IPV and PTSD diagnoses) outweighed the applicant's misconduct of forging a signature, willfully disobeying a commissioned officer, failure to obey a lawful general regulation, and making a false official statement basis for separation. 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. 11. 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 AR20200001898 1