1. Applicant’s Name: a. Application Date: 29 January 2020 b. Date Received: 6 March 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 and a reentry eligibility (RE) code change. The applicant seeks relief contending the misconduct that resulted in the discharge was the result of toxic leadership and the policies regarding it. The applicant would like an upgrade of the discharge for the purpose of being able to reenlist into the Navy or Army Reserves, go back to school and finish a degree, or to be able to receive 9/11 GI Bill benefits. b. Board Type and Decision: In a records review conducted on 23 June 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: Unsatisfactory Participation / Chapter 6, paragraph 6-35j, NGR 600-200 / NA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 January 2017 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: 11 April 2008 / 8 years (Oath of extension of enlistment or reenlistment dated 5 April 2014 extending the applicant’s 11 April 2008 enlistment for a period of 6 years giving the applicant a new ETS date of 16 December 2020). b. Age at Enlistment / Education / GT Score: 19 / GED /109 c. Highest Grade Achieved / MOS / Total Service: E-5 / 27D3P, Paralegal Specialist, 92F3P, Petroleum Supply Specialist / 8 years, 9 months, 10 days d. Prior Service / Characterizations: ARNG, 11 April 2008 to 3 September 2008 / NA ADT, 4 September 2008 to 6 February 2009 / UNC ARNG, 7 February 2009 to 15 April 2009 / NA OAD, 16 April 2009 to 13 October 2009 / HD ARNG, 14 October 2009 to 31 October 2010 / NA OAD, 1 November 2010 to 30 September 2011 / HD ARNG, 1 October 2011 to 3 August 2014 / NA OAD, 4 August 2014 to 2 November 2014 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM-3, AAM, NDSM, GWOTSM, NOPDR, ASR g. Performance Ratings: 9 June 2011 to 8 June 2012, Fully Capable 9 June 2012 to 8 June 2013, Fully Capable 9 June 2013 to 8 June 2014, Fully Capable 9 June 2014 to 8 June 2015, Fully Capable 9 June 2015 to 7 June 2016, Qualified h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: NIF j. Behavioral Health Condition(s): NIF (1) Applicant provided: (2) AMHRR Listed: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored letter; supplemental DD Form 293 requesting a RE Code change; several character references letters; NCO Evaluation Reports; enlistment documents; DD Form’s 214 for prior periods of active-duty service 6. POST SERVICE ACCOMPLISHMENTS: The applicant indicates now working as a government contractor. 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. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-8a, 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. (3) Paragraph 6-8b prescribes if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the Soldier’s conduct or performance of duty outweighs positive aspects of the Soldier’s military record. (4) Paragraph 6-34 prescribes Reentry Eligibility codes are determined at separation. They provide information concerning the Soldier’s service in the ARNG, which will be considered upon future enlistment. If a Soldier will receive a discharge under other than honorable conditions, and the reason for discharge is non-waivable for enlistment, the RE code will be RE 4. If the reason for separation is waivable, the RE code will be RE 3. If a Soldier receives a bad conduct or dishonorable discharge, the RE code is RE 4. Table 6-1 defines the differences between RE codes: RE-3 Applies to: a person not fully qualified for reentry or continuous service at time of separation, but this disqualification is waivable. (5) Chapter 6-35 prescribes for the separation/discharge from State ARNG and/or Reserve of the Army and the reasons, applicability, and codes for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both. These reasons may be used for separation from the State ARNG only. (6) Paragraph 6-35j defers to AR 135-178, Chapter 12, for unsatisfactory participation. Commanders may recommend retention of Soldiers who have accrued 9 or more unexcused absences within a 1-year period. Submit requests with justification for retention to the State MPMO/G1. Include verification that the notification requirements of AR 135-91 and paragraph 6- 32 have been met. RE 3. LC: CW. 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 reentry eligibility (RE) code change. The applicant’s available Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army National Guard of Rhode Island and as Reserve of the Army. The applicant’s AMHRR does contain a properly constituted NGB Form 22 (Departments of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service), which was not authenticated by the applicant’s signature. The NGB Form 22 indicates the applicant was discharged under the provisions of NGR 600-200, Chapter 6, paragraph 6- 35j, by reason of unsatisfactory participation, with a characterization of service of general (under honorable conditions). The applicant seeks relief contending the misconduct that resulted in the discharge was the result of toxic leadership and the policies regarding it. The applicant would like an upgrade of the discharge for the purpose of being able to reenlist into the Navy or Army Reserves, go back to school and finish a degree, or to be able to receive 9/11 GI Bill benefits. The applicant’s contentions were noted; however, a further determination as to the upgrading of the applicant discharge cannot be made because the complete facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the discharge packet is not available in the official record. The applicant expressed a desire for and upgraded of the discharge for the purpose of being able to reenlist into the Navy or Army Reserves, go back to school and finish a degree, or to be able to receive 9/11 GI Bill benefits. However, 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. 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 the misconduct that resulted in the discharge was the result of toxic leadership and the policies regarding it. The Board considered this contention and determined, after reviewing the totality of the record, there was not enough evidence provided to corroborate the assertion that the applicant’s misconduct was a result of the toxic leadership. Thus, the discharge was proper and equitable. (2) The applicant expressed a desire for an upgrade of the discharge for the purpose of being able to reenlist. The Board considered this contention and voted to maintain the RE-code at RE-3, which is a waivable code. 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 reentry eligibility (RE) codes, if appropriate. (3) The applicant expressed a desire for an upgrade of the discharge for the purpose of going back to school and finish a degree, or to be able to receive 9/11 GI Bill benefits. 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 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, including the applicant’s contentions of toxic leadership, desire to reenlist, and desire to utilize VA benefits, the Board determined there was insufficient evidence provided by the applicant of the facts and circumstances alleged, or regarding the basis of separation, to determine whether any potentially mitigating factors actually mitigated or excused the separation. 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. ? 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 AR20200008670 1