1. Applicant's Name: a. Application Date: 1 May 2020 b. Date Received: 19 May 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 general (under honorable conditions). The applicant requests an upgrade to honorable, a narrative reason change, and a change to the separation code and reentry eligibility (RE) code. The applicant seeks relief contending, in effect, would like the discharge changed so the applicant can reenter the military and serve the country with honor and distinction. The applicant contends that he was harassed and treated unfairly by an NCOIC during the applicant time at Fort Irwin, CA. Further, a MSG retaliated against the applicant after the applicant filed an IG Complaint and went to EOO based on the various racial comments he made. Applicant also punished the applicant through UCMJ with trumped up allegation. MSG forced other NCOs to counsel the applicant when it was not merited. Unfortunately, during this time, the applicant was a young private and did not have the resources needed to do anything. The applicant's PL and Squad Leader were witness to this treatment but unfortunately could not help at the time. They are both writing statements on the applicant's behalf. One of the Senior Commissioned Officers that applicant worked with during this time was also aware of what happened and has volunteered to write a letter of recommendation also. b. Board Type and Decision: In a records review conducted on 28 April 2023, and by a 5-0 vote, the Board found sufficient evidence of an in-service mitigating factor (harassment) and post service accomplishments that do mitigate the applicant's incidents of FTR's and failing to obey a lawful order. Based on a preponderance of evidence, the Board determined that the character of service applicant received upon separation was inequitable. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 August 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 July 2006 (2) Basis for Separation: The applicant was informed of the following reasons: for having received a company grade Article 15 for failing to report to formation twice and failure to obey a lawful order. The applicant also received numerous counseling statement for failing to report and lying to his chain of command. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 July 2006 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 1 August 2006 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 November 2004 / 4 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 126 c. Highest Grade Achieved / MOS / Total Service: E-3 / 96B10, Intelligence Analyst / 1 year, 11 months, 26 days d. Prior Service / Characterizations: USAR, 16 August 2004 to 17 November 2004 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 19 April 2006 for failure to go at the time prescribed to the appointed place of duty on 21 February 2006 and 6 March 2006, and disobeying a lawful order from a commissioned officer on 24 March 2006, by wrongfully having a DVD Player while on duty. The punishment consisted of reduction to E-2, forfeiture of $350.00 pay per month for one month, and extra duty and restriction for 14 days. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): See Below (1) Applicant provided: (2) AMHRR Listed: Report of Mental Status Evaluation dated 19 May 2006, which indicates the applicant was seen at Community Mental Health Services, the applicant met the retention standard prescribed in Chapter 14-12a, and there was no psychiatric disease or defect, which warrant disposition through medical channels. The applicant was mentally responsible able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in administrative/board proceedings. The applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored letter; several letters of support' / recommendation; and unofficial student academic record. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends that since discharge he has joined the US Border Patrol and become a Federal Law Enforcement Officer. The applicant then took time to obtain a Bachelors' Degree in Criminal Justice from California State University Fullerton. The applicant has become an outstanding member in his community and volunteered hundreds of hours at Citrus College specifically with the Veteran's Center. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 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, a narrative reason change, and a change to the separation code and reentry eligibility (RE) code. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates separation action was initiated against the applicant for having received a company grade Article 15 for failing to report to formation twice and failure to obey a lawful order; also, for receiving numerous counseling statement for failing to report and lying to the chain of command. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant seeks relief contending, in effect, would like the discharge changed so that the applicant can reenter the military and serve the country with honor and distinction. The applicant contends that he was harassed and treated unfairly by an NCOIC during the applicant time at Fort Irwin, CA. Further, a MSG retaliated against the applicant after the applicant filed an IG Complaint and went to EOO based on the various racial comments he made. He also punished the applicant through UCMJ with trumped up allegation. He forced other NCOs to counsel the applicant when it was not merited. Unfortunately, during this time, the applicant was a young private and did not have the resources needed to do anything. The applicant's PL and Squad Leader were witness to this treatment but unfortunately could not help at the time. They are both writing statements on the applicant's behalf. One of the Senior Commissioned Officers that he worked with during this time was also aware of what happened and has volunteered to write a letter of recommendation also. The applicant's contentions were noted; however, the applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was harassed and treated unfairly at the time of discharge. The service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of service, brought discredit on the Army, and were prejudicial to good order and discipline. 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 applicant requests an upgrade of his discharge for the purpose of being able to reenter the military and serve his country with honor and distinction. Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Evidence indicates the applicant was assigned a RE code of 3. 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. 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): (1) The applicant seeks relief contending, at the time of discharge applicant was harassed and treated unfairly by the NCOIC who retaliated against applicant after filing an IG Complaint and went to EOO based on the various racial comments made. The Board found this contention valid and voted to upgrade the discharge to Honorable based on applicant's in- service mitigating factor (harassment) and post service accomplishments mitigate the applicant's incidents of FTR's and failing to obey a lawful order. (2) The applicant requests an upgrade to honorable, a narrative reason change, and a change to the separation code and reentry eligibility (RE) code. The Board considered this contention during proceedings and voted to grant relief in the form of an upgrade of the characterization of service to Honorable. The board also, determined the applicant received the appropriate SPD and RE code and no change is warranted at this time. (3) The applicant seeks relief contending, in effect, would like the discharge changed so that the applicant can reenter the military and serve the country with honor and distinction. The Board considered this contention, and determined the applicant received the appropriate RE code and no change is warranted at this time. c. The ADRB determined that the applicant's characterization of service was inequitable based on the applicant's in-service mitigating factor (harassment) and post service accomplishments mitigate the applicant's incidents of FTR's and failing to obey a lawful order. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's in-service mitigating factor (harassment) and post service accomplishments mitigated the accepted of separation - Pattern of Misconduct. Thus, the prior characterization is no longer appropriate. (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: Yes b. Change Characterization to: Honorable 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 AR20200007352 1