1. Applicant's Name: a. Application Date: 30 March 2020 b. Date Received: 2 April 2020 c. Counsel: 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 and a change of his reentry eligibility (RE) code. The applicant seeks relief contending, in effect, he made a mistake by drinking while underage and was fined for the infraction of operating a motor vehicle off-base after drinking underage; however, he does not believe he committed a serious offense. Even though it was not a crime and his alcohol level was less than half the legal limit, he was discharged for committing a serious offense and received a general discharge. Prior to his arrest he had no disciplinary history in the military. Subsequent to his arrest, he stopped drinking and enrolled in the Army Substance Abuse Program. He is requesting his discharge be upgraded so that he is able to pursue his law degree and continue the mission of serving others. In a records review conducted on 1 September 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge, the applicant was separated for underage drinking which was minor misconduct. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, changed the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code to JKN, with no change to the reentry eligibility (RE) code 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-3 / General, Under Honorable Conditions b. Date of Discharge: 29 June 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 March 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant operated a vehicle while under the influence of alcohol. (3) Recommended Characterization: General, (Under Honorable Conditions) (4) Legal Consultation Date: 28 March 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 May 2016 / General, Under Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 July 2014 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 128 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B, Infantryman / 1 year, 11 months, 9 days d. Prior Service / Characterizations: None / None e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM, ASR, Parachutist Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Police Report, dated 17 January 2016, reflects the applicant was arrested for operating a vehicle under the influence. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 2 February 2016, reflect the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with alcohol use. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, Letters of Support-5, Academic Transcript, Certificate of Recognition-3 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has worked hard, acted responsibility, and graduated from college with honors. He also states he has assisted with veteran programs and he wishes to continue his education. 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) 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, 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, Paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and a RE code change. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant contends he made a mistake by drinking while underage and was fined for the infraction of operating a motor vehicle off-base after drinking underage; however, he does not believe he committed a serious offense. However, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The applicant also contends prior to his arrest he had no disciplinary history in the military. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant states he is requesting his discharge be upgraded so that he is able to pursue his law degree and continue the mission of serving others. However, eligibility for veteran's 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. The applicant states he would like his RE code to be changed. Soldiers being processed for separation are assigned RE 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 "3." There is no basis upon which to grant a change to the reason or to the RE code. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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, a voting member, reviewed all available medical records and found no BH diagnoses on the applicant. The applicant provided no documents or testimony during the personal appearance that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition. (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? (N/A) b. Response to Contentions: (1) The applicant requests an upgrade to honorable and a RE code change. The Board determined that the charges were minor, and voted that relief was warranted. However, the Board determined that the RE-code was proper and equitable. (2) The applicant contends he made a mistake by drinking while underage and was fined for the infraction of operating a motor vehicle off-base after drinking underage; however, he does not believe he committed a serious offense. The Board determined that this contention was valid, and the discharge characterization was too harsh for the offenses. (3) The applicant also contends prior to his arrest he had no disciplinary history in the military. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments (4) The applicant states he is requesting his discharge be upgraded so that he is able to pursue his law degree and continue the mission of serving others. However, eligibility for veteran's 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. (5) The applicant states he would like his RE code to be changed. Soldiers being processed for separation are assigned RE codes based on their service records or the reason for discharge. The applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the RE code. The Board voted to not change the RE-code at this time. (6) The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. The Board considered them during deliberation as proof of post service accomplishments. c. The Board determined the discharge is inequitable based on the minor misconduct. The board considered the applicant's significant post service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, changed the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code to JKN, with no change to the reentry eligibility (RE) code 3. However, the applicant may request a personal appearance hearing to address the RE 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 determined the discharge is inequitable based on the underage drinking being relatively minor misconduct. The board considered the applicant's significant post service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. (2) The Board voted to change the narrative reason to Misconduct (Minor Infractions), based on supporting documentation, and a corresponding SPD code of JKN (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infraction) d. Change Authority to: AR 635-200, paragraph 14-12c e. Change SPD / RE Code to: JKN / 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 AR20200003786 7