1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, serving honorably in combat in Afghanistan. The applicant currently suffers from the effect of closed head injuries from an attack with a sledgehammer and being involved in IED attacks. The applicant has a current diagnosis of PTSD. The serious misconduct consists of a single incident of DUI where the applicant was self- medicating. b. Board Type and Decision: In a records review conducted on 11 July 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and post- service accomplishments outweighed the applicant's DUI, failure to obey regulation and fraternization basis for separation. 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. The Board voted and determined the reentry eligibility (RE) code was proper and equitable due to applicant's PTSD diagnosis warranting consideration prior to reentry of military service. 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, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 28 April 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 April 2014 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 24 March 2014, the applicant physically controlled a vehicle while the alcohol concentration on the breath was as shown by chemical analysis, equal to or exceeded .08 grams of alcohol per 210 liter of breath, which is the limit under North Carolina General Statute 20-138.1; On or about 24 March 2014, violate a lawful general regulation, to wit: paragraph 4(g), 82D Airborne Division Regulation 190-2, Prohibited Items and Activities, dated 30 November 2010, by wrongfully having an alcohol concentration on the breath equal to or greater than .05 grams of alcohol per 210 liters while the unit was under the Global Response Force in the Division Ready Force #1 Status; and, On or about 24 March 2014, knowingly fraternize with PFC T. J. H., an enlisted person, on terms of military equality, to wit: consuming alcoholic beverages with PFC T. J. H. at Mac's Speed Shop, such conduct being prejudicial to good order and discipline in the armed forces. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 15 April 2014, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 April 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 July 2010 / 5 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B2V, Infantryman / 3 years, 9 months, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (1 June 2011 - 29 February 2012) f. Awards and Decorations: ACM-2CS, ARCOM-2, AAM, AGCM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Commander's Report, undated, reflects the applicant was found guilty at an Article 15 on 1 April 2014. The punishment consisted of a reduction to E-4; forfeiture of $1,107 pay per month for two months (suspended for 180 days); and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: South Denver Physicians PLLC medical record, dated 1 August 2014, reflects the applicant was diagnosed with Obstructive sleep apnea chronic; Anxiety Disorder chronic; Posttraumatic Stress Disorder chronic; and Headache chronic. Southlands Health Images MRI Report, dated 5 August 2014, reflects there is mild volume loss for age. VA medical documents reflect the applicant received a diagnosis of PTSD; depression; and, Depressive Disorder NEC, not elsewhere classified. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; attorney letter; four third- party letters; VA electronic medical documents; VA Form 10-5345a; Southlands Health Images MRI results; Three South Denver Physicians PLLC medical documents; Practice Fusion Lab Results. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is pursuing a college degree at Metropolitan State University in Denver. 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 waivable and nonwaivable 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 waivable. 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 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 good service, including a combat tour. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends the event which led to the discharge from the Army was an isolated incident of DUI where the applicant was self-medicating. 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 suffering from the effect of closed head injuries from an attack with a sledgehammer; being involved in IED attacks and has a current diagnosis of PTSD. The applicant provided a copy of South Denver Physicians PLLC medical record, dated 1 August 2014, which reflects the applicant was diagnosed with Obstructive Sleep Apnea chronic; Anxiety Disorder chronic; Posttraumatic Stress Disorder chronic; and Headache chronic. Southlands Health Images MRI Report, dated 5 August 2014, reflects there is mild volume loss for age. VA medical documents reflect the applicant received a diagnosis of PTSD; Depression; and, Depressive Disorder NEC, not elsewhere classified. The AMHRR does not contain a mental status evaluation. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct while serving and after leaving the Army. The applicant is pursuing a college degree at Metropolitan State University in Denver. 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: PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of service-related PTSD and TBI not diagnosed until after separation from service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has evidence of mild TBI and PTSD per post-service records. Both PTSD and mild TBI mitigate substance misuse due to a nexus between such conditions and self-medication of symptoms to include alcohol misuse; thus, there is psychiatric mitigation for operating vehicle over the legal limit and violating a general regulation of excessive alcohol use while unit was subject to global response force recall. There is no nexus between either PTSD or TBI of the nature described in records and fraternization with an enlisted person, although it appears this incident also involved alcohol use. (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 available evidence did not support a conclusion that the applicant's PTSD and TBI outweighed the basis for applicant's separation - fraternization with an enlisted person. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the applicant's narrative reason for discharge warrants a change due to the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and continued education post service outweighing the discharge. (2) The applicant contends good service, including a combat tour. The Board considered this contention and determined the applicant's discharge warrants an upgrade due to the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and continued education post service outweighing the discharge. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident of DUI where the applicant was self-medicating. The Board considered this contention and determined the applicant's discharge warrants an upgrade due to the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and continued education post service outweighing the discharge. (4) The applicant contends suffering from the effect of closed head injuries from an attack with a sledgehammer; being involved in IED attacks and has a current diagnosis of PTSD. The Board considered this contention and determined the applicant's discharge warrants an upgrade due to the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and continued education post service outweighing the discharge. (5) The applicant is pursuing a college degree at Metropolitan State University in Denver. The Board considered this contention and determined the applicant's discharge warrants an upgrade due to the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and continued education post service outweighing the discharge. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and post- service accomplishments outweighed the applicant's DUI, failure to obey regulation and fraternization basis for separation. 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. The Board voted and determined the reentry eligibility (RE) code was proper and equitable due to applicant's PTSD diagnosis warranting consideration prior to reentry of military service. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to Honorable because the applicant's length and quality of service, to include combat service, applicant's PTSD and TBI diagnoses, and post-service accomplishments outweighed the applicant's DUI, failure to obey regulation and fraternization basis for separation. 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, due to applicant's PTSD diagnosis warranting consideration prior to reentry of military service. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: 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 AR20210001785 1