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 honorable. The applicant, through counsel, requests a narrative reason change. The applicant seeks relief contending, in effect, during the three years and two months of service, the applicant showed nothing but the highest level of service one could expect from a Soldier. The applicant's awards and decorations, combat service, and personal problems are all factors which mitigate the misconduct which led to the separation. Considering the totality of the applicant's service, the discharge character of service is inequitable. The applicant respectfully requests a change of Narrative Reason for Discharge to "Secretarial Authority" or some other non-stigmatizing term. b. Board Type and Decision: In a records review conducted on 22 June 2023, and by a 5-0 vote, the board determined the narrative reason to be inequitable, as there is an association between the applicants in service diagnosis of TBI and self-medicating mitigated the applicant's two incidents of DUIs the basis of separation. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The RE Code of 3 is appropriate and will remain the same given the applicant's history of TBI. 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 / Honorable b. Date of Discharge: 7 April 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 14 February 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received two alcohol related incidents within twelve months. On or about 27 February 2010, the applicant wrongfully operated a motor vehicle while under the influence of alcohol; and on or about 26 November 2010, the applicant wrongfully operated a motor vehicle while under the influence of alcohol. (3) Recommended Characterization: The Company Commander recommended the applicant be separated, but the separation be suspended for 12 months with a characterization of service of Honorable. (4) Legal Consultation Date: On 15 February 2011, the applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 August 2007 / 4 years, 22 weeks b. Age at Enlistment / Education / GT Score: 23 / some college / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Specialist / 3 years, 7 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (1 January 2009 - 5 January 2010) f. Awards and Decorations: ACM-CS, JSCM, ARCOM, AAM, MUC, VUA, AGCM, NDSM, NCOPDR, OSR, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: New York State Arrest Report, dated 26 November 2010 reflects the applicant was arrested for the following charges: Fail Keep Right; DWI 2nd Offense; and AGG Unlic Oper 1. Report of Behavioral Health Evaluation (BHE), dated 22 March 2010, reflects the applicant was mentally responsible with a clear-thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was cleared for any administrative actions deemed appropriate by command. The applicant has been screened for Post-Traumatic Stress Disorder and Traumatic Brain Injury. These conditions are either not present or, if present, do not meet AR 40-501 criteria for a medical evaluation board. Three Developmental Counseling Forms, for disobeying a direct order; arrested for DUI, aggravated DUI (BAC .21), speeding, driving across hazard marking, refusal to take breath test and consumption of alcohol in motor vehicle; and 2nd DWI. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: Health Record, dated 22 July 2009, reflects the applicant was being seen for neurological disorders following explosion of an IED on 22 July 2009. The applicant reports no loss of consciousness or pre/post event amnesia. The applicant denies any acute symptoms beyond left low back pain and mild concentration difficulties. (2) AMHRR Listed: Report of Medical History, dated 15 December 2010, the examining medical physician noted in the comments section: Concussion after IED blast in July 2009. Evaluated by mTBI clinic. Reports short memory loss. Difficulty falling asleep no previous evaluations. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter from attorney; ARBA letter; attorney brief; DD Form 214; five third-party letters; Recommendation for JSCM Award; narrative for award; Permanent Order #279-020; health record; three DA Forms 4856; partial separation packet. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is continuing a career in food service as a chef at Threefold Café in Coral Gables, Florida. The applicant manages kitchen staff, contributes to menu creation, and handles supply management and ordering. 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) 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. (4) 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. (5) 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 a narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an honorable 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 abusing alcohol as a coping mechanism following the return from deployment. The applicant provided a copy of Health Record, dated 22 July 2009, which reflects the applicant was being seen for neurological disorders following explosion of an IED on 22 July 2009. The applicant reports no loss of consciousness or pre/post event amnesia. The applicant denies any acute symptoms beyond left low back pain and mild concentration difficulties. The AMHRR shows the applicant underwent a of Behavioral Health Evaluation (BHE), dated 22 March 2010, which reflects the applicant was mentally responsible with a clear- thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was cleared for any administrative actions deemed appropriate by command. The applicant has been screened for Post-Traumatic Stress Disorder and Traumatic Brain Injury. These conditions are either not present or, if present, do not meet AR 40-501 criteria for a medical evaluation board. The BHE was considered by the separation authority. The AMHRR also shows Report of Medical History, dated 15 December 2010, the examining medical physician noted in the comments section: Concussion after IED blast in July 2009. Evaluated by mTBI clinic. Reports short memory loss. Difficulty falling asleep no previous evaluations. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct while serving in the Army. The applicant is continuing a career in food service as a chef at Threefold Café in Coral Gables, Florida. The applicant manages kitchen staff, contributes to menu creation, and handles supply management and ordering. 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, after applying liberal consideration found the applicant's TBI could mitigate applicant's discharge that warranted a previous Board to upgrade the applicant's discharge to Honorable Discharge, and now warrants reconsideration of applicant's discharge narrative reason, and RE Code. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with a TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant's TBI mitigates the applicant's DUI offenses given the nexus between TBI and self-medicating with substances. (4) Does the condition or experience outweigh the discharge? Yes. The Board determined that the applicant's TBI outweighed the applicant's medically mitigated DUI that warranted a previous Board to upgrade with a Honorable Discharge. However, the Board determined that the applicant's PTSD did not fully excuse the applicant's misconduct but determined that the applicant's narrative reason warrants a change to "minor infractions." b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and voted to change the applicant's reason and SPD code as referenced in paragraph 9a(4), above. (2) The applicant contends good service, including a combat tour. The Board considered this contention and voted to change the applicant's reason and SPD code as referenced in paragraph 9a(4), above. (3) The applicant contends abusing alcohol as a coping mechanism following the return from deployment. The Board considered this contention and voted to change the applicant's reason and SPD code as referenced in paragraph 9a(4), above. (4) The applicant is continuing a career in food service as a chef at Threefold Café in Coral Gables, Florida. The applicant manages kitchen staff, contributes to menu creation, and handles supply management and ordering. The Board considered this contention and voted to change the applicant's reason and SPD code as referenced in paragraph 9a(4), above. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. However, the board voted to change the applicant's narrative reason and directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. d. Rationale for Decision: (1) The Board determined that the applicant's TBI outweighed the applicant's medically mitigated DUI that warranted a previous Board to upgrade with a Honorable Discharge. The Board also determined that the applicant's PTSD did not fully excuse the applicant's misconduct, however, determined that the applicant's narrative reason warrants a change to "minor infractions." Thus, the prior narrative reason 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: No Change c. Change Reason / SPD code to: Misconduct (Minor Infraction)/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 AR20210001834 1