1. Applicant's Name: a. Application Date: 10 June 2020 b. Date Received: 16 June 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, the applicant was involved in a driving under the influence (DUI) incident while in Hawaii on 2 September 2012, and administrative action was taken. The applicant was flagged, barred from reenlistment, and reprimanded. The DUI case was reduced to a speeding ticket and the applicant was never charged with a DUI. After the court case appearance, the applicant's flag was removed, and the bar was lifted. The applicant moved on with no other misconduct and completed all requirements of the Army Substance Abuse Program (ASAP). The applicant had already been rehabilitated and punished for the misconduct and the discharge is additional punishment for the same incident. The applicant served in the Reserves for 8 years and on active duty for over six years. b. Board Type and Decision: In a records review conducted on 02 June 2023, and by a 5-0 vote, the Board determined that the discharge was inequitable based on the applicant's in- service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, TBI and Anxiety DO partially mitigate the applicant's misconduct- 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: 6 January 2014 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: 26 November 2013 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 November 2010 / 4 years b. Age at Enlistment / Education / GT Score: / 1 year college / 126 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92A20, Automated Logistical Specialist / 14 years, 3 months, 23 days d. Prior Service / Characterizations: RA, 21 September 2007 - 5 November 2010 / HD RA, 2 November 1995 - 27 March 1996 / UNC (Concurrent Service) (IADT) USAR, 2 October 1995 - 8 October 2003 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (15 July 2010 - 2 July 2011) f. Awards and Decorations: ACM-CS-2, ARCOM-2, AAM-2, NATO MDL, AGCM, NDSM, GWOTSM, KDSM, OSB-2, ASR, OSR g. Performance Ratings: 1 March 2011 - 10 October 2011 / Fully Capable 11 October 2011 - 10 October 2012 / Marginal 11 October 2012 - 10 October 2013 / Among the best h. Disciplinary Action(s) / Evidentiary Record: GOMOR dated 28 November 2012, reflects the applicant was reprimanded for operating a motor vehicle on 2 September 2012, in Kailua, Hawaii while under the influence of alcohol. According to the report, the applicant was stopped for speeding. Upon making contact, the police officer detected a strong odor of alcohol emanating from the applicant's breath. The applicant was administered a field sobriety test, which the applicant failed. The applicant was apprehended and transported to the police station where the applicant was advised of the Hawaii Implied Consent Law. A subsequent breathalyzer test revealed a BAC of .154 percent, thus exceeding the legal limit. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides page 1 of a VA Rating decision, dated 24 February 2020, which reflects the applicant has an 80-percent combined disability rating effective 20 September 2019. The complete nature of the disabilities is not listed on this page. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Memorandum for Record, letter from attorney, VA Decision Rating (page 1), DD Form 214-2, Diploma-2. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming 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. 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, states 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. 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's service AMHRR is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. The applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, paragraph 14- 12c, by reason of Misconduct (Serious Offense), with a characterization of service of General (Under Honorable Conditions). The applicant contends the applicant was rehabilitated and punished for the misconduct and the discharge is additional punishment for the same incident. The applicant's contention was noted; however, a determination on whether the contention have merit 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 complete 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 the applicant responsibility to meet the burden of proof since the complete discharge packet is not available in the official record. The applicant states the applicant served in the Reserves for 8 years and on active duty for over six years. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. 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: PTSD, MDD, Anxiety DO, unspecified. (2) Did the condition exist, or experience occur during military service? Yes. VA service connection for MDD (30%) establishes it occurred during military service. VA records also indicate that the applicant's diagnosis of PTSD was combat-related. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant has several BH conditions which mitigate some of his misconduct. As there is an association between MDD, PTSD, TBI and Anxiety DO, unspecified and use of alcohol or drugs to self- medicate, there is a nexus between these conditions and his arrest for DUI. These conditions, however, do not mitigate speeding 30 miles per hour over the speed limit as these conditions do not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD, MDD, Anxiety DO, unspecified does not mitigate the applicant's speeding 30 miles per hour over the speed limit as these conditions do not affect one's ability to distinguish right from wrong and act in accordance with the right. b. Response to Contention(s): (1) The applicant contends the applicant was rehabilitated and punished for the misconduct and the discharge is additional punishment for the same incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicants in-service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, TBI and Anxiety DO partially mitigate the applicant's misconduct - DUI. (2) The applicant requests an upgrade to honorable. The Board considered this contention, and ultimately did not address it due to an upgrade being granted for the aforementioned reasons. c. The Board determined that the characterization was inequitable based on the applicant's in-service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, TBI and Anxiety DO partially mitigate the applicant's misconduct - 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's in-service mitigating factors of length, quality, combat and concurred with the conclusion of the medical advising official that the applicant's BH Conditions of MDD, PTSD, TBI and Anxiety DO partially mitigate the applicant's misconduct - DUI. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the 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 AR20200010131 1