1. Applicant’s Name: a. Application Date: 26 March 2020 b. Date Received: 31 March 2020 c. Counsel: Yes 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, through counsel, an upgrade to honorable along with a reentry (RE) code and narrative reason change. The applicant’s counsel seeks relief contending, in effect, despite the applicant’s reason for separation, the Army National Guard (ARNG) failed to keep adequate records detailing the incident(s) surrounding the separation. The applicant requested information regarding the alleged unsatisfactory performance on numerous occasions with no avail. Since the discharge the applicant has demonstrated a profound commitment to public service. The applicant received certification as a fireman and has steadily advanced in the field. The applicant states the discharge was improper because the applicant was unable to get in touch with the California Army National Guard (CAARNG). Weekly calls to the unit went unanswered, drill dates were never given, and visits to the unit resulted in no contact with the appropriate personnel. Prior commitment with the United States Army Reserve (USAR) was completed and was the applicant was released into the Individual Ready Reserve (IRR) before reenlistment with the CAARNG. The applicant desires to reenter military service. b. Board Type and Decision: In a personal appearance conducted on 18 September 2023, and by a 3-2 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: Unsatisfactory Performance / NGR 600-200, PARA 8-26d / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 1 April 2005 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: 17 May 2004 / 2 years b. Age at Enlistment / Education / GT Score: HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 31U10, Signal Support System Specialist / 8 years, 11 months, 9 days d. Prior Service / Characterizations: USAR, 13 March 1997 – 12 August 1997 / NA RA, 12 August 1997 – 12 May 1998 / HD (IDAT) USAR, 4 August 2003 – 16 May 2004 / NA USARCG 13 December 1985 – 3 August 2003 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293-3, Legal Brief, NGB Form 22E, DD From 214, Orders, previous ADRB records review, Certificate of Training-2, Fire Fighter Certification Certificate, Citation and Medal of Valor, Lifesaving Medal Award, Citation for a Heroic Act. 6. POST SERVICE ACCOMPLISHMENTS: The applicant completed certification as a fireman and has earned numerous awards. 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. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 8-26d defers to AR 135-178, chapter 9, Unsatisfactory Performance. e. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. (1) Paragraph 2-9a prescribes an honorable characterization 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. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Chapter 9 establishes policy and prescribes procedures for separating members for unsatisfactory performance. misconduct. Action will be taken to separate a member for unsatisfactory performance when, in the commander’s judgement; a Solder will not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier; the seriousness of the circumstances forming the basis for initiation of discharge proceedings is such that the Soldier’s retention would have an adverse impact on miliary discipline, good order, and moral; there is a likelihood the Soldier will be a disruptive influence in present or future duty assignments; there is likelihood the circumstances forming the basis for initiation of separation proceedings will continue or recur; the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely; and the Soldier meets retention standards. (4) Paragraph 9-6 states Soldiers discharged because of unsatisfactory performance will be characterized as honorable or general (under honorable conditions) in accordance with chapter 2, section III, of this regulation. 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, through counsel, an upgrade to honorable along with a RE code and narrative reason change. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s available AMHRR and the issues and documents submitted with the application were reviewed. The AMHRR is void of the specific facts and circumstances concerning the events, which led to the discharge from the Army National Guard. A NGB Form 22, reflects the applicant was discharged from the ARNG on 1 April 2005, under the provisions of NGR 600- 200, Paragraph 8-26d, due to Unsatisfactory Performance with a General (Under Honorable Conditions) characterization of service. The applicant’s counsel requests the narrative reason and RE code for the discharge be changed. The applicant was separated under the provisions of NGR 600-22, Paragraph 8-26d, due to Unsatisfactory Performance, with a general (under honorable conditions) discharge. The narrative reason specified by NGR 600-200, with general (under honorable conditions) is “Unsatisfactory Performance.” Governing regulations stipulate no deviations is authorized. The is no provision for any other reason to be entered under this regulation. 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. The applicant’s counsel contends, despite the applicant’s reason for separation, the ARNG failed to keep adequate records detailing the incident(s) surrounding the separation and the applicant requested information regarding the alleged unsatisfactory performance on numerous occasions with no avail. 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’s counsel states since the discharge the applicant has demonstrated a profound commitment to public service. The applicant received certification as a fireman and has steadily advanced in the field. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The applicant’s counsel contends the applicant had prior honorable service in the USAR and the applicant desires to reenter military service. Soldiers processed for separation are assigned RE codes based on their service records or the reason for discharge. An RE Code of “3” indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army’s needs at the time and are required to process waivers of RE codes if appropriate. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None. b. The applicant presented the following additional contention(s): None. c. Counsel / Witness(es) / Observer(s): Mr. Donald W. Gordon 10. 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’s counsel contends, despite the applicant’s reason for separation, the ARNG failed to keep adequate records detailing the incident(s) surrounding the separation and the applicant requested information regarding the alleged unsatisfactory performance on numerous occasions with no avail. The Board considered this contention but found that there was insufficient evidence to corroborate the applicant’s contention that the applicant was unable to contact the National Guard unit regarding drill status/schedule over an 11-month period. (2) The applicant’s counsel states since the discharge the applicant has demonstrated a profound commitment to public service. The Board considered the applicant’s commitment to public service but ultimately determined these factors did not outweigh the applicant’s unsatisfactory participation. (3) The applicant’s counsel contends the applicant had prior honorable service in the USAR. The Board considered the applicant’s prior honorable service but ultimately determined these factors did not outweigh the applicant’s unsatisfactory participation. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. 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 voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, considering the applicant’s request, supporting documents, evidence in the records, a medical review and published Department of Defense guidance for liberal consideration of discharge upgrade requests, the Board found it did not excuse or mitigate the offenses of unsatisfactory participation. 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 General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable discharge. (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. 11. 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 AR20200007864 1