1. Applicant’s Name: a. Application Date: 18 July 2020 b. Date Received: 5 August 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 an upgrade to honorable, and a change to the separation program designator (SPD) code and reentry eligibility (RE) code to 1. The applicant seeks relief contending, in effect, the applicant was wrongly accused of charges that were dropped and dismissed. The applicant is trying to reenlist for active duty service in the Army again. The applicant was not court-martialed and has proof of the court’s dismissal of charges in order to reenlist. The applicant was in the wrong place and time of the allegations and was incarcerated for almost a year for a crime the applicant did not commit. The applicant was a victim of the allegations and was proven in court. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a records review conducted on 6 September 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 11 August 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 July 2018 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant committed misconduct through damaging personal property of another by striking the wall of a home located on Fort Leonard Wood, MO. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 31 July 2018, the applicant waived the right to counsel because the applicant failed to submit matters by the suspense date of 31 July 2018. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 July 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 February 2015 / 3 years, 24 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92Y10, Unit Supply Specialist / 3 years, 5 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, AGCM, NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, 21 February 2017, for failing to go at the time prescribed to the appointed place of duty on or about 21 November 2016 (0730 hours Motor Pool), 2 November 2016 (0820 hours work call), 24 October 2016 (0520 hours physical training formation), 28 November 2016 (0520 hours physical training formation), 21 November 2016 (0520 hours physical training formation), 15 November 2016 (1500 hours, hospital), 20 October 2016 (0520 hours accountability formation), and 19 October 2016 (0900 hours work call). The punishment consisted of a reduction to E-2 (suspended); forfeiture of $418.00 pay (suspended); extra duty for 14 days; and an oral reprimand. A DA Form 4833 (Commander Report of Disciplinary or Administrative Action) reflects the applicant was referred on 12 December 2015 for Communicating a Threat on 8 October 2015. Law Enforcement Report - 1st Corrected Final, 14 December 2015, reflects an investigation established the applicant committed the offense of Communicating a Threat (Founded). On 12 October 2015, the applicant denied the above offense. On 23 November 2015, trial counsel opined sufficient probable cause existed to title the applicant with Communicating a Threat. Developmental Counseling Form, 23 February 2017, reflects the applicant was counseled for initiation of a commander’s investigation (LA) flag for the findings in a law enforcement investigation. Developmental Counseling Form, 1 March 2018, reflects the applicant was counseled for recommendation for separation under AR 635-200, chapter 14-12c, commission of a serious offense. Developmental Counseling Form, 29 March 2017, reflects the applicant was counseled for receiving a speeding ticket on 25 March 2017. Seven additional developmental counseling forms, for various acts of misconduct. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 2 April 2018, reflects the applicant was flagged for involuntary separation/field initiated (BA), effective 29 March 2018. Law Enforcement Report - SIR (Category 2)/Final/Joint/Referred, 25 May 2017, reflects an investigation established the applicant committed the offense of Assault with Intent to Murder. The applicant was identified as the shooter. The applicant was arrested, a preliminary hearing for the applicant was held on 3 May 2017, and resulted in the case going before a Grand Jury within the next couple months. No further investigative assistance was required by the Criminal Investigation Division. Receipt For Pretrial/Post-Trial Prisoner or Detained Person, 10 June 2018, reflects the applicant was charged with official statement, obstructing justice, and wrongful damage to private property. The applicant was released to a unit representative. A DA Form 4833 reflects the applicant was referred on 2 July 2018 for Wrongful Damage to Private Property, False Official Statement, Obstruction of Justice, and Domestic Disturbance on 8 and 9 June 2018. The applicant was in the process of being discharged and reassigned to the U.S. Army transition point. Law Enforcement Report - 1st Corrected Final, 2 July 2018, reflects an investigation established the applicant committed the offense of Obstruction of Justice, Wrongful Damage to Private Property, and False Official Statement. The applicant was titled with the above listed offenses, processed, and released to the applicant’s unit noncommissioned officer. Email, 19 July 2018, reflects E__ G__ emailed the senior defense counsel recanting their previous statement that the applicant punched a hole in the wall which was not true. The hole came from moving an entertainment center for A__ K__’s ex-husband to pick up. The applicant never punched the wall. Law Enforcement Report - Final, 17 October 2018, reflects an investigation established the applicant committed the offense of Theft of Private Property. On 28 September 2018, Staff Judge Advocate opined sufficient probable cause existed to title the applicant with Theft of Private Property. A DA Form 4833 reflects the applicant was referred on 18 October 2018 for Theft of Private Property on 27 July 2018. No action was taken, the applicant was discharged out of the Army on 11 August 2018. Law Enforcement Report - 1st Corrected Final, 7 November 2018, reflects an investigation established the applicant committed the offense of Larceny of NAF property, Theft of NAF Property, and Conspiracy to Commit Theft of NAF Property. On 9 October 2018, Captain (name masked) opined sufficient probable cause existed to title the applicant with the above listed offenses. A DA Form 4833 reflects the applicant was referred on 15 November 2018 for Conspiracy to Commit Theft of NAF Property on 3 October 2018. No report on actions taken, a check of Magistrate Court records could not validate what the action was taken on the offense listed. The action was closed due to no records available. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Three separate Reports of Mental Status Evaluation (MSE), 11, 13, and 20 February 2018, reflects the applicant was evaluated for a safety assessment. Further assessment was needed to determine behavioral health medical readiness status. The applicant had been screened for post-traumatic stress disorder (PTSD) and mild traumatic brain injury (mTBI) with negative results. On 11 and 13 February 2018, it was recommended the applicant be on unit watch for both support and safety. On 20 February 2018, the risk level did not warrant unit watch for support and safety. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Other problem related to psychosocial circumstances. Report of MSE, 19 March 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Problems related to other legal circumstances. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 149; DD Form 214; self-authored statement; civilian court documents. 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 PTSD, 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable, and a change to the SPD and RE codes. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The record confirms the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. The applicant contends, in effect, the separation code (SPD) should be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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, SPD Codes. The regulation stipulates no deviation is authorized. There is no provision for any other SPD code to be entered under this regulation. The applicant requests a RE code change to 1 and would like to reenlist in the Army. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of “3.” 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. The applicant contends, in effect, the applicant was wrongly accused of charges that were dropped and dismissed. The applicant states when discharged the applicant was pending legal issues. The applicant provided civilian court documents reflecting a charge for Assault, 1st Degree, citation date 6 June 2017. On 19 March 2020, criminal docket was dismissed without prejudice. On 20 March 2020, the original charge was dismissed by motion of the prosecutor. The applicant contends, in effect, the applicant was not court-martialed and has proof of the court’s dismissal of charges in order to reenlist. The applicant was in the wrong place and time of the allegations and was incarcerated for almost a year for a crime the applicant did not commit. The AMHRR reflects the applicant was discharged from the Army for damaging personal property which is separate from the misconduct that the applicant was incarcerated for. A Law Enforcement Report - 1st Corrected Final, 2 July 2018, reflects an investigation established the applicant committed the offense of Obstruction of Justice, Wrongful Damage to Private Property, and False Official Statement. The applicant was titled with the above listed offenses, processed, and released to the applicant’s unit noncommissioned officer. The Army Review Board Agency provided the law enforcement reports, to the applicant at the email address provided in the application on 4 August 2023 requesting comments but received no response from the applicant. Analyst notes the applicant checked the other mental health box on the DD Form 293. The applicant’s AMHRR shows the applicant underwent a MSE on 11, 13, and 20 February 2018, for a safety assessment. which indicates the applicant was diagnosed with other problem related to psychosocial circumstances. The applicant also underwent a MSE on 19 March 2018, for a separation evaluation, which indicates the applicant was diagnosed with problems related to other legal circumstances. The Military Review Board (MRB) representative emailed the applicant at the email in the application on 7 July 2023 requesting documentation to support a mental health condition. On 24 July and 24 August 2023, the MRB representative followed up by calling the applicant at the phone number in the application, there was no answer and a voicemail could not be left because it was not setup. No response has been received from the applicant. 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? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: the applicant was diagnosed in-service with Adjustment Disorder. Post-service, the applicant is not service connected but does hold multiple substance diagnoses with Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the diagnosis is not mitigating as an Adjustment Disorder is a temporary, low-level difficulty coping with stressors that does not render an individual unable to make conscious choices understanding right from wrong and consequences. Rather, the applicant’s misconduct was a continuation of pre- enlistment characterological issues which continue post-service. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant’s Adjustment Disorder and Major Depressive Disorder outweighed the basis for applicant’s separation – Damaging personal property – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends, in effect, the separation code (SPD) should be changed. The Board considered this contention, but found the applicant’s SPD was proper and equitable. (2) The applicant contends, in effect, the applicant was wrongly accused of charges that were dropped and dismissed. The Board considered this contention but found no corroborating evidence in the applicant’s file to support this assertion and voted the discharge proper and equitable. (3) The applicant contends, in effect, the applicant was not court-martialed and has proof of the court’s dismissal of charges in order to reenlist. The Board considered this contention but found no medical mitigating diagnosis that outweighed the applicant’s misconduct. The applicant currently has an RE code of 3, which allows reentry into service with a waiver. (4) The applicant contends, in effect, the applicant is trying to reenlist for active-duty service in the Army again. The Board considered this contention and the applicant currently has an RE code of 3, which allows reentry into service with a waiver. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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’s Adjustment Disorder and Major Depressive Disorder Diagnosis did not excuse or mitigate the offenses of damaging personal property. The Board considered the applicant’s length and quality of service, however based on the non BH mitigation of the misconduct, 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, and 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: 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 AR20200008032 1