1. Applicant’s Name: a. Application Date: 12 July 2020 b. Date Received: 21 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. The applicant seeks relief contending, in effect, before the applicant ever joined the military, the applicant never had any trouble with peers, authority figures, or anyone appointed over the applicant. The applicant admits to being a young follower in the Army with no guidance. The decision the applicant made was irrational and led the applicant into much trouble. The applicant has been with the Montgomery Fire Department since May 2017, and has two children. Since the discharge, the applicant has never had any trouble with supervisors or the police. The applicant’s last encounter with the police was with the Military Police when the applicant was in the Army. The applicant learned trouble was easy to get into and hard to get out of. The general (under honorable conditions) discharge hinders the applicant’s ability to attend school using the GI Bill. The applicant requests an upgrade to attend college, earn a degree, and to serve the country again someday. The applicant learned much from friends in the military and understands what the leaders were trying to tell the applicant while in the service. This upgrade will not only help the applicant gain entrance to start school but also help the applicant finish the education the applicant began while in the service. The upgrade will help the applicant and the family out of the financial issues the applicant ran into after separation and to become a more financially stable person for the family. 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 June 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 May 2016 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was disrespectful towards a noncommissioned officer. The applicant assaulted Private E-2 (PV2) A. C., by pushing PV2 A. C. The applicant assaulted Private First Class (PFC) R. V., by putting PFC R. V. in a headlock and striking PFC R. V. on the head with a closed fist. The applicant failed to follow lawful orders on numerous occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 May 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 6 June 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 January 2014 / 3 years, 24 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 89 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Specialist / 2 years, 5 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Receipt for Pre-Trial/Post-Trial Prisoner or Detained Person, dated 9 February 2016, reflects the applicant was detained for the offenses of unlawful entry and conspiracy. Law Enforcement Report – 5th Corrected Final, dated 19 February 2016, reflects an investigation established the applicant committed the offense of Assault Consummated by Battery and Unlawful entry when on 9 February 2016, the applicant and another Soldier entered a Soldier’s room without permission and assaulted another Solder. Field Grade Article 15, dated 4 March 2016: The applicant did unlawfully push PV2 A. C., with open hands (9 February 2016). The applicant did unlawfully enter the barracks room of PV2 A. C. (9 February 2016) The applicant was disrespectful in deportment toward Sergeant (SGT) S., a noncommissioned officer, by walking away while SGT S. was talking to the applicant (13 November 2015). The applicant was derelict in the performance of the duties on four occasions, by culpable inefficiency failed to keep account of the personal assigned M-4 (10 February 2016); willfully failing to write a 1000 word essay (13 November 2015); willfully or negligently failed to completely set up the short order side of the dining facility (21 July 2015); and willfully failing to go to the troop medical clinic and receive a flu shot (13 November 2015). The applicant did unlawfully strike PFC P. W. on the head with a closed fist (9 February 2016) and unlawfully put PFC P. V. in a headlock with the arm. The applicant did unlawfully enter the barracks room of PV2 A. C. (9 February 2016). The punishment consisted of a reduction to E-1; forfeiture of $783 pay per month for two months; and extra duty and restriction for 45 days. Two Developmental Counseling Forms, dated 2 May 2016, for violation of Enterprise’s rental policy and disobeying a lawful order. Receipt for Pre-Trial/Post-Trial Prisoner or Detained Person, dated 3 May 2016, for allowing an unlicensed driver to operate a motor vehicle. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 25 April 2016, reflects the applicant was cleared for separation. The applicant could understand and participate in administrative proceedings 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 of Adjustment to Life Cycle Transitions. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been employed by the fire department since May 2017, has two children, and has not had any issues with supervisors or the police. 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. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends an upgrade would allow educational benefits through the GI Bill and other veterans benefits. 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 desires to rejoin the Military Service. 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 reentry eligibility (RE) codes if appropriate. The applicant contends being employed by the fire department since May 2017, having two children, and not having any issues with supervisors or the police. 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 diagnosis: Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? No. The Board Medical Advisor found evidence of a potentially-mitigating diagnosis, however, there is insufficient evidence that the applicant’s MDD existed during service. (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 applicant did not have a depressive condition in-service. Rather, the applicant developed MDD with the progression of chronic pain from service connected medical conditions. Accordingly, the post-service development of a behavioral health condition is not mitigating. (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. The Board considered this contention. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is insufficient evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant’s contention does not outweigh the basis for separation – disrespect toward an NCO, assault, and failure to follow lawful orders. (2) The applicant contends an upgrade would allow educational benefits through the GI Bill and other veterans 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. (3) The applicant desires to rejoin the Military Service. 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 (4) The applicant contends being employed by the fire department since May 2017, having two children, and not having any issues with supervisors or the police. The Board considered the applicant’s post-service accomplishments, and determined they do not outweigh the nature and severity of the applicant’s misconduct. 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 MDD did not excuse or mitigate the offenses of disrespect toward an NCO, assault, and failure to follow lawful orders as the condition did not exist during service. The Board further considered the applicant’s contentions of impropriety and inequity and determined they do not outweigh the nature and severity of the offenses, and there is insufficient evidence of any arbitrary or capricious action taken by the Command. 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (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 AR20200008995 1