1. Applicant's Name: a. Application Date: 3 March 2020 b. Date Received: 31 March 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 uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, was unfairly discharged from the military because of the foreign contacts the applicant used as references on his security application. The applicant believes he was unfairly treated because of being pulled out of training while other trainees who had parents in jail for drugs were allowed to train. The applicant further contends while serving in the reserves the applicant went to all drills, id physical training, and chores. While in basic training the applicant passed all events of ACFT and shot expert on the M4 weapon; while helping with detailing, cleaning, inventory management and always did duties when scheduled. Though out the applicant time in service the applicant obeyed his general order, performed all duties in a military manner, and quit his post when the applicant was properly relieved. For these reasons and as the applicant time in service was greater than 180 days (100 days of active service at basic plus 169 days in reserves) the applicant believes to be eligible to receive a characterization of service of honorable as a resulting of being on active duty for more than 90- days. b. Board Type and Decision: In a records review conducted on 23 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, and the Board's acknowledgement of the Army's historical practices of encouraging recruitment of foreign nationals with foreign contacts outweighing the basis for separation - failing to meet the qualifications for enlistment due to findings from security clearance check. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. The Board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. 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: Erroneous Entry / AR 635-200, Chapter 7, SEC III / JFC / RE-3 / Uncharacterized b. Date of Discharge: 27 February 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 February 2020 (2) Basis for Separation: The applicant was informed of the following reasons: for failing to meet the qualifications for enlistment due to findings from security clearance check. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: 20 February 2020 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 24 February 2020 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: ADT, 18 November 2019 / 13 weeks for basic training and 15 weeks MOS training, or until complete b. Age at Enlistment / Education / GT Score: 28 / Master's Degree / 123 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 8 months, 29 days d. Prior Service / Characterizations: ARNG, 29 May 2019 to 17 November 2019 / NA (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Several counseling statement references to the applicant being discharge because of Chapter 7-15 (erroneous enlistment). i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): None (1) Applicant provided: (2) AMHRR Listed: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; basic training individual training report; enlisted record brief; enlistment documents; separation packet / file; extracts / handout related to Chapter 7, AR 635-200; security clearance application of the applicant; documents related to potential foreign influence associated with the applicant; photo's; extracts from the Washington Post; certificate from New Mexico State University for Master of Science in Mechanical Engineering and several other transcripts; letter of support; 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) Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. Unless the DCS, G-1, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. A Soldier is in an entry-level status (ELS) if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. (6) Chapter 7 provides the authority, criteria, and procedures for the separation of Soldiers because of erroneous enlistment, reenlistment, or extension of enlistment, defective enlistment agreement, or fraudulent entry. (7) Paragraph 7-15 prescribes a Soldier may be separated based on an erroneous enlistment, induction, or extension of enlistment per guidance in chapter 1, section II. For Chapter 7, the term enlistment means both an original enlistment and any subsequent enlistment (re-enlistments). (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 "JFC" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 7, paragraph 7-15, erroneous entry. 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-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. 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's AMHRR indicates on 20 February 2020 separation actions was initiated against the applicant for failing to meet the qualifications for enlistment due to findings from security clearance check. The applicant was separated under the provisions of Chapter 7, SEC III, AR 635-200 with an uncharacterized discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Erroneous Entry)," and the separation code is "JFC." The applicant seeks relief contending, in effect, was unfairly discharged from the military because of the foreign contacts the applicant used as references on his security application. The applicant believes he was unfairly treated because of being pulled out of training while other trainees who had parents in jail for drugs were allowed to train. The applicant further contends while serving in the reserves the applicant went to all drills, id physical training, and chores. While in basic training the applicant passed all events of ACFT and shot expert on the M4 weapon; while helping with detailing, cleaning, inventory management and always did duties when scheduled. Though out the applicant time in service the applicant obeyed his general order, performed all duties in a military manner, and quit his post when the applicant was properly relieved. For these reasons and as the applicant time in service was greater than 180 days (100 days of active service at basic plus 169 days in reserves) the applicant believes to be eligible to receive a characterization of service of honorable as a resulting of being on active duty for more than 90- days. The applicant's contentions were noted; evidence in the records indicates the applicant entered active duty on 18 November 2019 for a period of 13 weeks for basic training and 15 weeks MOS training, or until complete. On 20 February 2020, separation action was initiated against the applicant for failing to meet the qualifications for enlistment due to findings from security clearance check. At the time of notification 20 February 2020, the applicant had been on active duty for a period of 94 days. The applicant had served less than 180 days and as such was still in entry-level status. A Soldier is in entry-level status for the first 180 days of continuous active duty. Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier's service will be uncharacterized when separated in entry-level status. For ARNGUS and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT). Soldiers completing Phase I BT or basic combat training (BCT) remain in entry-level status until 90 days after beginning Phase II. 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 no mitigating BH diagnoses on the applicant. 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? N/A b. Response to Contention(s): The applicant seeks relief contending being unfairly discharged from the military because of the foreign contacts used as references on his security application. The applicant believes he was unfairly treated because of being pulled out of training while other trainees who had parents in jail for drugs were allowed to train. The applicant contends while serving in the reserves he went to all drills, id physical training, and chores. While in basic training he passed all events of ACFT and shot expert on the M4 weapon; while helping with detailing, cleaning, inventory management and always did duties when scheduled. Though out his time in service he obeyed his general order, performed all duties in a military manner, and quit his post when he was properly relieved. For these reasons and as his time in service was greater than 180 days (100 days of active service at basic plus 169 days in reserves) the applicant believes to be eligible to receive a characterization of service of honorable as a result of being on active duty for more than 90- days. The Board considered this contention but ultimately did not consider it dispositive during deliberations due to an upgrade being granted based a finding that the discharge is inequitable based on the applicant's length and quality of service, and the Board's acknowledgement of the Army's historical practices of encouraging recruitment of foreign nationals with foreign contacts outweighing the basis for separation - failing to meet the qualifications for enlistment due to findings from security clearance check. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, and acknowledgement of the Army's historical practices of encouraging recruitment of foreign nationals with foreign contacts outweighing the basis for separation - failing to meet the qualifications for enlistment due to findings from security clearance check. Thus, warranting relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's length and quality of service, and acknowledgement of the Army's historical practices of encouraging recruitment of foreign nationals with foreign contacts outweighing the basis for separation - failing to meet the qualifications for enlistment due to findings from security clearance check. Thus, the prior characterization of service is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (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 / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20200006309 1