1. Applicant’s Name: a. Application Date: 8 January 2020 b. Date Received: 3 February 2020 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 under other than honorable conditions. The applicant requests an upgrade to honorable or general (under honorable conditions), a change to his reentry eligibility (RE) code, and a change to his rank and pay-grade. The applicant seeks relief contending, in effect, would like to reenlist and be able to have the rank and pay-grade reestablished to the previous standing. The applicant was falsely accused even though the police had their report. The applicant ex was having sexual relations with one of them, which started the process of the individual getting the applicant out of the Army. The applicant also contends serving six months in the County Jail and completed a mandatory anger management class. b. Board Type and Decision: In a records review conducted on 10 March 2023, 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: NGR 600-200, paragraph 6-35i(1) / Acts or Patterns of Misconduct / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 13 March 2015 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 (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 March 2010 / 6 years b. Age at Enlistment / Education / GT Score: 34 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-5 / 12W10, Carpentry and Masonry Specialist, 68W10, Health Care Specialist / d. Prior Service / Characterizations: ARNG, 30 May 1997 to 2 September 1997/ NA ADT, 3 September 1997 to 5 February 1998 / UNC ARNG, 6 February 1998 to 2 September 2002 / NA OAD, 3 September 2002 to 27 July 2003 / HD ARNG, 28 July 2003 to 11 October 2005 / NA OAD, 12 October 2005 to 14 April 2006 / HD ARNG, 15 April 2006 to 13 December 2006 / HD Break-in-Service e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, NDSM-2, GWOTSM-2, ASR, AFRM-W/M DEV-2, ASR, CASAWDAN-2, CASAWDAQ-2, KSNGACHR-3, DSNGSVCM g. Performance Ratings: 12 June 2012 to 11 June 2013 / Fully Capable 12 June 2013 to 11 June 2014 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: NIF j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 149 in lieu of 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), 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 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7 prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier’s service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. e. National Guard Regulation (NGR) 600-200 and Army Regulation (AR) 135-91 govern procedures covering enlisted personnel management of the Army National Guard. Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard. (1) Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard. (2) Paragraph 6-35i(1) relates to acts or patterns of misconduct under the UCMJ, State Military Code, or similar laws. This includes abuse of illegal drugs to include testing positive, 2 serious incidents of alcohol-related misconduct within a 12-month period, IAW AR 600-85, chapter 10, involved in illegal trafficking, distribution, possession, use or sale of illegal drugs and convicted of driving while intoxicated or driving under the influence a second time during their career. All Soldiers identified as abusers of illegal drugs will be referred for treatment as appropriate regardless of the commander’s intent to take administrative, nonjudicial, or judicial action. Commanders must initiate separation action within 45 days of the act or referral, regardless of the commander’s recommendation. Recommendation for retention or separation will be forwarded through command channels to the separation authority. AR 135-178 states when the discharge authority decides to retain and as a condition of retention, enroll in a rehabilitation program as soon as possible. Enrollment and participation will be at no expense to the government. Commanders will immediately begin discharge actions for Soldiers who refuse tor fail to enroll in a rehabilitation program because of committing a drug offense. RE 3 or 4. LC: AD (Drug abuse) or MM (Misconduct) RE 3 or 4. 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 waiverable and nonwaiverable 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 waiverable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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 or general (under honorable conditions), a change to the reentry eligibility (RE) code., and a change to the rank and pay-grade. The applicant’s available Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army National Guard of Kansas and the Reserves of the Army. However, the applicant’s record does contain a properly constituted NGB Form 22 (National Guard Report of Separation and Record of Service), which was not authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge. The NGB Form 22 indicates the applicant was discharged under the provisions of NGR 600- 200, Chapter 6, paragraph 6-35i (1), Acts or Patterns of Misconduct under the UCMJ, State Military Code or similar laws, with a characterization of service of under other than honorable conditions. Further, the NGB Form 22 shows a reentry eligibility (RE) code of 4. The applicant seeks relief contending, in effect, was falsely accused even though the police had their report. The ex was having sexual relations with one of them, which started the process of the individual getting the applicant out of the Army. The applicant contends, in effect, served six months in County Jail and completed a mandatory anger management class. The applicant requested a change to the reentry eligibility (RE) code. Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The applicant’s contentions were noted; a determination on whether these contentions have merit cannot be made because the 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. If the applicant desires a personal appearance hearing, it will still be the applicant responsibility to meet the burden of proof since the discharge packet is not available in the official record. The applicant also requested a change to the rank and pay-grade. The applicant’s requested change does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 and found that the applicant has the following potentially-mitigating diagnosis: The applicant was diagnosed in-service with a Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with a Personality Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that even if the basis for separation was known, the applicant’s diagnosis provides context rather than mitigation; the diagnosis does not render an individual unable to make conscious choices, distinguishing from right and wrong, understanding the consequences. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): (1) The applicant seeks relief contending being falsely accused even though police had their report. Applicant’s ex was having sexual relations with one of them, which started the process of getting out of the Army. Applicant also contends serving six months in County Jail and completed a mandatory anger management class. The Board considered this contention and found insufficient evidence in the AMHRR, and in the evidence provided by the applicant regarding the actual basis for separation. The Board determined that without knowing the specific facts and circumstances relating to the applicant’s discharge, the Board is unable to determine whether the applicant’s contentions actually outweigh the basis for applicant’s separation. (2) The applicant requested a change to the reentry eligibility (RE) code. The Board considered this contention and determined that Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of “4.” An RE code of “4” cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. (3) The applicant also requested a change to the rank and pay-grade. The Board determined that the applicant’s requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans’ Service Organization. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. 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, there is insufficient evidence that the applicant’s Personality Disorder is a mitigating BH condition, and the Board was unable to determine if the totality of the record to include the applicant’s contentions outweigh the basis for separation without knowing the specific facts and circumstances surrounding the applicant’s discharge. 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. Therefore, the applicant’s UOTHC was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20200003435 1