1. Applicant's Name: a. Application Date: 18 August 2020 b. Date Received: 18 August 2020 c. Counsel: 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, a change to the reentry eligibility (RE) code to 1, and the narrative reason to "Secretarial Authority." The applicant through counsel seeks relief contending, in effect, the applicant did not commit a serious offense warranting separation under Army Regulation 635-200. The discharge resulted from the applicant's wife's drug addiction and behavioral health issues. Aside from incidents related to the applicant's wife's behavior, the applicant's service to the Army was honorable. A general characterization of service is inequitable and unjust. The applicant through counsel further details the rationale for the discharge in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 18 August 2023, and by a 4-1 vote, the Board, based on compassion for the applicant's homelessness and rehabilitation attempts determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the characterization of service 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 24 April 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 29 March 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On 4 February 2018, the applicant endangered the welfare of the applicant's children when the applicant decided not to keep the applicant's house in a certain standard of living. (3) Recommended Characterization: General (Under Honorable Conditions) / On 29 March 2018, the intermediate commander recommended an Honorable characterization of service. (4) Legal Consultation Date: On 29 March 2018, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 April 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 December 2016 / 3 years, 17 weeks b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19K10, M1 Armor Crewman / 1 year, 3 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The commander's report, dated 29 March 2018, reflects the applicant received an Article 15, for violation of Article 134. The punishment consisted of a reduction to E-3 (suspended); and restriction for 7 days. Analyst notes the applicant's highest rank in the Army was E-3, which indicates the commander incorrectly annotated the suspended rank reduction in the commander's report as E-3. Headquarters, 3rd Infantry Division and Fort Stewart incident report reflects there was an event involving apprehension of a Fort Stewart, GA Soldier for child endangerment and maintaining a disorderly home on post on 4 February 2018. The neighbors of the applicant called the Fort Stewart, GA military police (MP) to report that the applicant's child was running in the street. The MP responded and contacted the company leadership. Two noncommissioned officers responded to the applicant's house. They conducted a health and wellness check at the request of the responding officers. They found the house to be in unsanitary and unsafe conditions. The applicant and wife were apprehended by the MP for child endangerment and maintaining a disorderly home. The children had not been directly harmed. The applicant and wife were released and the children remained in their custody. Developmental Counseling Form, dated 5 February 2018, reflects the applicant placed the applicant's children in an unhealthy environment at the applicant's residence. The MP, two noncommissioned officers from the unit, and a medical team came to the applicant's residence on 4 February 2018 to conduct a health check of the residence and the children. The residence was trashed and cluttered, the kitchen had trash piled up with numerous bags and the dishes had not been cleaned. Also, there was cat feces on the floor where the children played. The children were considered to be in good health. The applicant and the applicant's spouse were taken into custody for child endangerment, which is in direct violation of Article 134 of UCMJ. The applicant was released into the custody of the company first sergeant. Developmental Counseling Form, dated 6 February 2018, reflects the applicant was counseled for initiation of a flag for being detained for child neglect. Law Enforcement Report - 1st Corrected Final, dated 14 March 2018, reflects an investigation established the applicant committed the offense of Child Neglect/Endangerment and Disorderly House. On 4 February 2018, a health and welfare took place at the applicant's residence. Fort Stewart MP arrived on the scene and noted the house was in deplorable conditions. The Division of Family and Children Services and MP Investigators was notified and an attempt was made to notify Family Advocacy. The applicant and spouse was transported to the Fort Stewart MP Station for further processing. The applicant was released to the unit on DD Form 2708. The applicant's spouse was released on own recognizance on a DD Form 2708. This was a final report. The applicant's Enlisted Record Brief, dated 26 April 2018, reflects the applicant was flagged for adverse action (AA), effective 6 March 2018 and for involuntary separation/field initiated (BA), effective 5 February 2018; was ineligible for reenlistment due to pending separation (9V). The Assignment Eligibility Availability (AEA) code reflects AEA code "L" which has no assignment restrictions. FLAGS / AEA codes: AA, BA / L RE/Prohibition code: 9V i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation page one only, dated 14 March 2018, reflects the applicant met medical retention requirements and was cleared for any administrative actions deemed appropriate by the command. The applicant was diagnosed with relational problem not otherwise specified. The applicant had a follow up appointment with the Family Advocacy Program. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all listed enclosures 1 through 4; supplement Legal Brief with enclosure 1; partial case separation packet. 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), 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 prescribes 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-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, and a change to the RE code to 1, and the narrative reason to "Secretarial Authority." The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant through counsel contends, in effect, the narrative reason for the discharge should be changed to "Secretarial Authority." The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." 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 through counsel requests a RE code of 1. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant through counsel contends, in effect, the applicant did not commit a serious offense warranting separation under AR 635-200. The applicant's company commander, Captain (CPT) J__ P__ identified the following as the specific factual reason for initiating separation: "On 4 February 2018, [the applicant] endangered the welfare of [the applicant's] children when [the applicant] decided not to keep [the applicant's] house in a certain standard of living." CPT P__ explained that separation was appropriate because of the applicant's "inability to maintain [the applicant's] family [was] not conducive to military service." The evidence does not support a violation of Article 134, UCMJ, child endangerment. To be guilty of this offense, the government must prove four elements: (1) that the applicant had a duty for the care of a certain child; (2) that the child was under 16 years of age; (3) that the applicant endangered the child's mental or physical health, safety, or welfare through design or culpable negligence; and (4) that, under the circumstances, the applicant's conduct was prejudicial to good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. Article 134 states that "culpable negligence is a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission." To "endanger" someone is "to subject one to a reasonable probability of harm." Under this article, a person's "duty of care is determined by the totality of the circumstances." Here, there is no evidence that the applicant endangered the applicant's child's health, safety, or welfare through design or culpable negligence. While the house was admittedly in a state of disorder when the police conducted their health and welfare check, the police report indicates that "[a] check of the children showed that they were in good health" (analyst notes - see Developmental Counseling Form, dated 5 February 2018) and that the "children [had] not been directly harmed" see incident report) by the conditions of the home. The officers confirmed during their inspection that the applicant and wife had baby food in the pantry and fresh food inside the refrigerator (analyst notes - see sworn statement of Sergeant R__ A. G__). While the home could have certainly been tidier, it cannot be said that the children were subjected to a "reasonable probability of harm" based on the conditions of the home. The AMHRR contains an incident report that reflects the children remained in the applicant and wife's custody. The applicant through counsel contends, in effect, the primary reason that the home appeared unmanaged was because dishes and laundry had piled up due to their residence having no water downstairs for approximately a week. The septic had been backing up into the house and "Balfour Beatty (the contracted housing/landlord company) knew of the issue, had been out and could not fix it" and had not given a timeline for repair. There is no evidence in the AMHRR the applicant ever sought assistance through the chain of command. The applicant through counsel contends, in effect, the discharge resulted from the applicant's wife's drug addiction and behavioral health issues. The wife's drug addiction and other problems were hidden from the applicant during the applicant's term of service. Counsel provided an email from the applicant's wife, dated 13 January 2023, that states the applicant's wife was having a difficult time adjusting to Army life. The applicant's wife turned to drinking and it got out of control. The applicant got the applicant's wife some help, and the wife began seeing a psychiatrist and was diagnosed with postpartum depression and borderline personality disorder. The applicant's wife was prescribed anti-anxiety and anti-depression medication and began therapy. The legal brief states the battalion commander was aware of the applicant's wife's behavioral issues. The AMHRR contains the battalion commander's separation memorandum, which reflects the battalion commander recommended an honorable character of service. The applicant through counsel contends, in effect, a general characterization of service is inequitable and unjust. The applicant served honorably in the Army as an armor crewman receiving both the National Defense Service Medal and the Army Service Ribbon. During the applicant's enlistment, the applicant received no records of counseling, reductions, or derogatory data other than a single Article 15 as a result of the 4 February 2018 incident. Based on the totality of the applicant's service, the battalion commander recommended the applicant receive an honorable discharge. Analyst notes the applicant served 1 year, 3 months, and 28 days and was promoted twice within the first year and not reduced in rank. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant through counsel contends, in effect, the applicant is unable to take advantage of important benefits like the GI Bill. 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 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. 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 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 contends the applicant did not commit a serious offense warranting separation under AR 635-200. The Board considered this contention and determined that compassion for the applicant's attempts at rehabilitation and difficulties with homelessness merit an upgrade of the narrative reason to Misconduct (Minor Infractions). (2) The applicant contends the primary reason that the home appeared unmanaged was because dishes and laundry had piled up due to their residence having no water downstairs for approximately a week. The Board considered this contention and determined that the applicant's explanation of the offense is mildly persuasive and therefore, warrants upgrade to the narrative reason for separation to Misconduct (Minor Infractions). The Board did not find sufficient mitigating factors in the applicant's record to merit further upgrade. (3) The applicant contends, in effect, the discharge resulted from the applicant's wife's drug addiction and behavioral health issues. The Board considered this contention but found that this unfortunate circumstance does not outweigh the applicant's offense of endangering the welfare of a child as the Army affords many avenues to Soldiers experience family issues including seeking separation for hardship. (4) The applicant contends, in effect, a general characterization of service is inequitable and unjust. The Board considered this contention during proceedings. The Board found that the narrative reason for separation is inequitable out of compassion for the applicant's attempts at rehabilitation and difficulties with homelessness. The Board did not find additional mitigating factors in the applicant's service record to warrant further upgrade. (5) The applicant contends, in effect, the applicant is unable to take advantage of important benefits like the GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. c. The Board, based on compassion for the applicant's homelessness and rehabilitation attempts determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the characterization of service was proper and equitable and voted not to change it. However, the applicant may request a personal appearance hearing to address further 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 voted not to change the applicant's characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant was not found to hold a behavioral health condition that would excuse or mitigate the offense of endangering the welfare of a child. The Board considered the applicant's contentions regarding the spouse's role in the offense but found that the totality of the applicant's service record does not warrant a characterization upgrade. 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 to change the reason for discharge to Misconduct (Minor Infractions) out of compassion for the applicant's homelessness and desire to rehabilitate, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is 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: No Change c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200 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 AR20200007960 1