1. Applicant's Name: a. Application Date: 7 May 2020 b. Date Received: 12 May 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant also requests a narrative reason change along with a reenlistment eligibility (RE) and separation program designator (SPD) code change. The applicant seeks relief contending, in effect, he was discharged due to misconduct involving alcohol. He holds himself completely responsible for his actions. He did some good as a Soldier, but his misconduct ruined his career. He was too prideful to ask for help or understand what was happening with his life. In a records review conducted on 29 September 2021, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post service accomplishments, and the applicant's lack of maturity surrounding the discharge, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general, under honorable conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 9 February 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 December 2005 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana on two separate occasions; violated a lawful general order by consuming alcohol in Iraq; and made a false official statement. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 5 November 2005 (5) Administrative Separation Board: The applicant conditionally waived consideration of his case by an Administrative Separation Board on 5 November 2005, contingent upon acceptance of an Offer to Plead Guilty in a Summary Court-Martial. (6) Separation Decision Date / Characterization: 28 January 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 March 2003 / 3 years b. Age at Enlistment / Education / GT Score: 18 / Occupational Program Certificate Job Corps / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19K, M1 Armor Crewman / 2 years, 11 months, 4 days d. Prior Service / Characterizations: None / None e. Overseas Service / Combat Service: SWA / Kuwait/Iraq, 22 January 2005 - 10 January 2006 f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 6 July 2004, reflects the applicant wrongfully used marijuana between on or about 4 February 2004 and on or about 3 March 2004. The punishment consisted of reduction to private/E-1, forfeiture of $596.00 pay per month for 2 months and extra duty for 21 days. FG Article 15, dated 13 January 2005, reflects the applicant wrongfully used marijuana between on or about 2 November 2004 and on or about 2 December 2004. The punishment consisted of reduction to private/E-1, forfeiture of $617.00 pay per month for 2 months, and restriction for 45 days. A Record of Trial by Summary Court-Martial, reflects at a preliminary proceeding held on 8 November 2005, the applicant pled guilty and was found guilty of failure to obey a lawful general order and making a false official statement. The punishment consisted of forfeiture of $823.00and hard labor without confinement for 45 days. A Report of Mental Status Evaluation dated 11 November 2005, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, Letters of Supprt-4, Love, Swtr Inc. Flyer 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he and a fellow veteran started a non-profit organization to help at risk youth. 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 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 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 memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) 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. (7) 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. (8) 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, Chapter 14, paragraph 12c, misconduct (serious offense). 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. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant also requests a narrative reason change along with a RE and SPD code change. The evidence of records indicated separation action was initiated against the applicant for wrongfully using marijuana on two separate occasions; violating a lawful general order by consuming alcohol in Iraq; and making a false official statement. The applicant requests to change the reason for his separation and its corresponding codes; however, the narrative reason for her separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Insofar as changing the reentry 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 3. There is no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends he did some good as a Soldier, but his misconduct ruined his career. 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 also contends he was too prideful to ask for help or understand what was happening with his life. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. 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 DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony 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 Contention(s): (1) The Board considered, but found an upgrade to honorable not supported by the evidence of record. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including two separate failed UAs, drinking alcohol in Iraq, and making a false official statement, was not sufficiently meritorious to warrant an honorable discharge. (2) The applicant requests a narrative reason change along with a RE and SPD code change. The Board determined that those three parts to his discharge were proper and equitable voted not to change them due to the applicant not providing and fact or circumstance for the Board to consider his discharge unfair or improper. (3) The applicant contends he did some good as a Soldier, but his misconduct ruined his career. 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 also contends he was too prideful to ask for help or understand what was happening with his life. The evidence of records indicated separation action was initiated against the applicant for wrongfully using marijuana on two separate occasions; violating a lawful general order by consuming alcohol in Iraq; and making a false official statement. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct, which led to the separation action under review. c. The majority of the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, combat service, as well as post service accomplishments. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 characterization is now too harsh based on the applicant's length and quality of service, combat service, deploying him after positive UA instead of rehabilitation, as well as post service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General. The separation authority will not change, as it is both proper and equitable (2) The Board voted not to change the applicant's reason for discharge 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: Yes b. Change Characterization to: General (Under Honorable Conditions) c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 AR20200006582 1