1. Applicant's Name: a. Application Date: 11 July 2020 b. Date Received: 17 July 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 narrative reason change. The applicant seeks relief contending, in effect, being discharged from the military because of a driving under the influence (DUI) charge while on leave. It was the applicant's first-time home after deployment, and the applicant was having a difficult time transitioning back. This was the very first time the applicant was arrested, and it was a non-violent offense. The applicant believes the discharge was unjustified because the applicant had leadership with DUIs, and the individuals were promoted. The applicant has never been in any trouble with the law since the DUI. The applicant has been attending therapy and attempting to attend school. b. Board Type and Decision: In a records review conducted on 28 June 2023, and by a 5-0 vote the Board determined the discharge is inequitable based on the applicant's PTSD and length, quality and combat service outweighing the basis for separation - Serious Offense - DUI. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. 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, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 February 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 January 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On 19 December 2016, the applicant was apprehended in Jensen, Florida for operating a vehicle under the influence of alcohol. The applicant agreed to a breathalyzer test which resulted in the applicant blowing a .175 and a .183, which is more than twice the legal limit. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 31 January 2017 (5) Administrative Separation Board: (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 October 2014 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13F10, Fire Support Specialist / 2 years, 6 months, 16 days; 2 months and 6 days attributed to inactive service was in the delayed entry program. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (26 September 2015 - 1 June 2016) f. Awards and Decorations: ACM-CS, AAM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Arrest Affidavit, dated 19 December 2016, reflects the applicant was arrested for driving under the influence. The applicant was stopped for driving erratically by a police officer in Jensen, Florida. The officer, when speaking with the applicant noticed a strong odor of an unknown alcoholic beverage emitting from the applicant. The applicant told the officer there was a bar fight and the applicant was splashed with alcohol. The applicant was given a field sobriety test, which the applicant failed. The applicant was arrested and provided two breath samples, which resulted in 0.175 percent and 0.183 percent blood alcohol content (BAC). General Officer Memorandum of Reprimand, dated 29 December 2016, reflects the applicant drove a vehicle while the applicant's BAC was 0.175 percent. After being stopped for erratic driving on 19 December 2016, the applicant provided a breath sample, which indicated a BAC of 0.175 percent. Developmental Counseling Form dated 3 January 2017, for being charged with DUI. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Department of Veterans Affairs (VA) Rating Decision, dated 25 June 2019, reflecting the VA rated the applicant 50 percent service-connected disabled for post-traumatic stress disorder (PTSD) unspecified anxiety disorder, unspecified depressive disorder, and panic disorder. (2) AMHRR Listed: Report of Mental Status Evaluation, dated 13 January 2017, 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: Occupational problems. Report of Medical History dated 20 January 2017, the examining medical physician noted in the comments section: Sleep difficulties, counseling for depression / anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; and VA Rating Decision. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has not been in any trouble with the law since the DUI. The applicant has been attending therapy and attempting to attend school. 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-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 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 contends the narrative reason for the discharge needs changed. 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 contends being diagnosed with PTSD by the VA. The applicant provided medical documents indicating the VA rated the applicant 50 percent service-connected disabled for PTSD, unspecified anxiety disorder, unspecified depressive disorder, and panic disorder. The applicant's AMHRR shows the applicant underwent a mental status evaluation (MSE) on 13 January 2017, which indicates the applicant was mentally responsible and recognized right from wrong. The applicant had been screened for PTSD and mTBI with negative results. The applicant was diagnosed with an occupational problem. The applicant underwent a medical examination on 20 January 2017, which reflects the examining medical physician noted in the comments section: Sleep difficulties, counseling for depression / anxiety. The MSE and medical examination were considered by the separation authority. The applicant contends the event which led to the discharge from the Army was an isolated and nonviolent incident. Army Regulation 635-200, paragraph 3-5, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends other Soldiers with similar offenses were promoted and were not discharged. The DODI 1332.28 provides each case must be decided on its individual merits, and a case-by-case basis, considering the unique facts and circumstances of the case. Additionally, when an applicant cites a prior decision of the ADRB, another agency, or a court, the applicant shall describe the specific principles and facts contained in the prior decision and explain the relevance of the cited matter to the applicant's case. The Board is an independent body, not bound by prior decisions in its review of subsequent cases because no two cases present the same issues. The applicant contends an upgrade would allow educational benefits through 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 applicant contends not being in any trouble with the law since the DUI, attending therapy, and attempting to attend school. 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. 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/experiences: Adjustment DO; Other depressive episodes; PTSD (50%SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that VA service connection for PTSD establishes it occurred during active service. (Note-the diagnoses of Adjustment DO and Other Depressive Episodes are subsumed under the diagnosis of PTSD.) (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, PTSD. As PTSD is associated with the use of alcohol to self-medicate emotional symptoms, there is a nexus between his diagnosis of PTSD and his arrest for DWI. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD and applicant's length, quality and combat service outweighing the basis for separation - Serious Offense - DUI - for the aforementioned reason. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable and a narrative reason change. The Board considered this contention during proceedings and voted to grant an upgrade based on the applicant's PTSD and applicant's length, quality and combat service outweighing the applicant's Serious Offense - DUI basis for separation. Thus, and upgrade of the characterization of service and narrative reason for separation code is warranted. (2) The applicant contends being diagnosed with PTSD by the VA. The Board considered this contention during proceedings and voted to grant an upgrade based on the applicant's PTSD and applicant's length, quality and combat service outweighing the applicant's Serious Offense - DUI basis for separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated and nonviolent incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the detailed in paragraphs 9a (3-4) and 9b (1). (4) The applicant contends other Soldiers with similar offenses were promoted and were not discharged. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the detailed in paragraphs 9a (3-4) and 9b (1). The Board also determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. (5) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board 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. (6) The applicant contends not being in any trouble with the law since the DUI, attending therapy, and attempting to attend school. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the on the information outlined in paragraphs 9a (3-4) and 9b (1). c. The Board determined the discharge is inequitable based on the applicant's PTSD and total service records (length, quality, and combat service) outweighing the basis for separation - Serious Offense - DUI basis for separation. Thus, relief is warranted. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because, the applicant's PTSD and total service records (length, quality, and combat service) mitigated the misconduct of DUI. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the applicant's reason for discharge to Misconduct (Minor Infractions) under the same pretexts, 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 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20200008961 1