1. Applicant's Name: a. Application Date: 17 May 2020 b. Date Received: 11 May 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant through legal counsel requests an upgrade to honorable, a narrative reason change "for convenience of the government," and a reentry eligibility (RE) code change to 1. The applicant seeks relief contending, in effect, that the discharge was in error for several reasons; he is requesting a reissued DD Form 214 and associated discharge certificate. He is also requesting that all derogatory information be removed from his military file, to include the CID titling, Article 15 and any other negative material. The applicant contends there are procedural defect in his case. The request for administrative separation can be both command-initiated and initiated by the service-member. In the applicant's case, there was a hasty command-initiated request for separation. The applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way that they could have helped the applicant. During a command-initiated discharge request, under Chapter 10, Army Regulation 635-200: per reference 10-4 (b), consideration should be given to the Solder's potential for rehabilitation, and his/her entire record should be reviewed before taking action. The commander must provide the member reasonable time to overcome deficiencies. In the applicant's case there was a rush to judgment that there was a problem that could not be fixed. The command should have evaluated applicant as to whether the applicant had a long-term problem or whether there was an immediate fix. Counsel states, though the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate the elimination. The instruction also allows for the service member to be able to "fix" the problem. The applicant was not allowed these opportunities. The service- member was never offered or provided with rehabilitation. The command in this case did not have the proper authority to administratively separate applicant. The applicant was treated disparately much harsher than the other Soldier's in the unit and was not allowed to be rehabilitated. The applicant has been diagnosed with behavioral health problems, which should be considered. Since the time of elimination, there have been several changes to the discharge upgrade law. The Under Secretary of Defense issued a memo, which expanded protections for veterans whose adverse discharges were a result of the "invisible wounds" resulting from PTSD, sexual trauma or other mental health conditions. The Kurta Memo is very detailed and provides very useful guidance to support Veterans' discharge upgrade applications. Now the Wilkie memo, issued by then Under Secretary of Defense, issued Guidance to Military Review Boards Regarding Equity, Injustice, or Clemency Determinations. The Secretary noted that "increasing attention is being paid to pardons for criminal convictions and the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions." He also noted that while many states have developed veterans' courts to consider special circumstances associated with military service, states do not have authority to correct military discharges or military records." The Boards have an interest in doing what is right-for both the Veteran and the Service-to ensure fundamental fairness. Our Veterans deserve fair reviews of their cases. The Wilkie Memo helps the Boards and Veterans by providing guidance and standards that authorize Boards to grant relief in order to ensure fundamental fairness. Never ever give up. There is always hope. Counsel states, the general (under honorable conditions) discharge does not serve any further purpose. The events that took place are no longer relevant to the applicant's life and has since lived in a responsible manner as one could. There is no valid equitable purpose in leaving the discharge in place. Evidence in the record shows the applicant had a prior records view on 23 March 2020. In a telephonic personal appearance hearing conducted on 6 December 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 10 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 September 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 August 2018 (2) Basis for Separation: The applicant was informed of the following reasons: for being derelict in the performance of his duties on or about 14 February 2018, by failing to secure a spare M240 barrel; Failing to report to his appointed place of duty 6 February 2018, 24 April 2018, and 25 April 2018; Through negligence discharged an M240 on or about 11 April 2018; Failing to report to his appointed place of duty twice on 12 June 2018; and Failing to adhere to the grooming standard by failing to maintain a cleanly shaven face. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 August 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 August 2017 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 31 / 14 years / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A1P, Human Resources Specialist / 1 year, 2 months, 26 days d. Prior Service / Characterizations: USAR, 16 June 2017 to 1 August 2017 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 12 March 2018, for being derelict in the performance of his duties by negligently failed to keep his M240B Machine Gun Spare Barrel secured (14 February 2018). The punishment consisted of a forfeiture of $450.00 pay and extra duty and restriction for 14 days. FG Article 15, dated 11 June 2018, for failing to go at the time prescribed to his appointed place of duty (24 and 25 April 2018); and, through negligence, discharged a M240, while pulling security on guard duty (11 April 2018). The punishment consisted of a reduction to E-1, forfeiture of $819 pay per month for two months (suspended) and extra duty and restriction for 45 days. Record of Supplementary Action Under Article 15, UCMJ, dated 13 June 2018, indicates the suspended portion of the punishment imposed on 12 June 2018, was vacated because the applicant failed to go at the time prescribed to his appointed place of duty (12 June 2018). Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 28 June 2018, indicates the applicant was diagnosed with a Phase of Life Problem. It was also noted that the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Legal Brief Narrative, Military Files, Medical Files, LOC's, and Allied Documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence indicating he has no criminal records and pursuing a degree. 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 Service-member discharged from active military service within 15 years of the Service-member'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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant through legal counsel requests an upgrade to honorable, a narrative reason change "for convenience of the government," and a reentry eligibility (RE) code change to 1. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records indicate separation action was initiated against the applicant for being derelict in the performance of his duties on or about 14 February 2018, by failing to secure a spare M240 barrel; failing to report to his appointed place of duty 6 February 2018, 24 April 2018, and 25 April 2018; through negligence discharging an M240 on or about 11 April 2018; failing to report to his appointed place of duty twice on 12 June 2018; and failing to adhere to the grooming standard by failing to maintain a cleanly shaven face. The applicant contends the narrative reason for the discharge should be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly 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. It should be noted SPD 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. 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 14-12b, is "JKA." The applicant contends his command did not afford him the opportunity for rehabilitation. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The applicant failed to respond appropriately to these efforts. The applicant contends the events that took place are no longer relevant to his life and has lived in a responsible manner as he could. There is no valid equitable purpose in leaving the discharge in place. The applicant's contention was noted; the Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. The third party statements provided with the application speak highly of the applicant's performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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 DoD and VA medical records and found the applicant was diagnosed with Adjustment Disorder, Schizoid Personality Disorder, and Dysthymic Disorder, which, in the opinion of the Board's Medical Advisor could potentially mitigate the misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant was diagnosed with an Adjustment Disorder during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, the applicant's Adjustment Disorder, Schizoid Personality Disorder, and Dysthymic Disorder do not mitigate FTRs, dereliction of duty, grooming standard violation, and negligent discharge. Specifically, an Adjustment Disorder and Dysthymic Disorder do not impair an individual's ability to make conscious decisions and understand consequences especially in light of the multiple discussions with providers to try and rectify the behavior and arrive at better problem solving. (4) Does the condition or experience outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's FTRs, dereliction of duty, grooming standard violation, and negligent discharge outweighed the applicant's Adjustment Disorder, Schizoid Personality Disorder, and Dysthymic Disorder for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge should be changed. The Board determined 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 FTRs, dereliction of duty, grooming standard violation, and negligent discharge, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends his command did not afford him the opportunity for rehabilitation. The record shows 6 months between first listed offense and notification to separate. The applicant's patterns of misbehavior continued, and may have precluded first documented misconduct. Therefore, the Board determined the applicant had sufficient rehabilitation opportunities. (3) The applicant contends the events that took place are no longer relevant to his life and has lived in a responsible manner as he could. The ADRB is authorized to consider post- service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. 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, the applicant's Adjustment Disorder, Schizoid Personality Disorder, and Dysthymic Disorder did not mitigate the FTRs, dereliction of duty, grooming standard violation, and negligent discharge. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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. (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. 11. 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 AR20200009587 7