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 under other than honorable conditions. The applicant requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, going to a club with fellow Soldiers after duty hours, which was a pre-planned evening and arranged for the spouse to pick the applicant up. On the way home, they were pulled over by the police and the spouse reminded the applicant their license was suspended, and the spouse was upset and asked the applicant to swap seats. They did so and when the police officer approached and asked why they had swapped seats, they explained. The applicant was asked to exit the car and was told although the applicant was not driving when they were pulled over, because the applicant moved into the driver's seat with the motor running, the applicant was technically operating the car. The police officer determined the applicant had been drinking and arrested the applicant for Driving While Intoxicated (DWI). The applicant spoke with TDS and learned the Army could not prosecute the applicant two years after the incident. The command was supportive of the applicant, especially considering the fact the applicant had not driven while drunk and had actually taken steps and made a plan prior to drinking. There was an officer from higher up in the chain of command who was disinterested in the subjective circumstances of any off-post arrest: charges equaled guilt, period. The applicant pleaded guilty to the charge two years and three days after the arrest. The attorney never explained the burden of proof the DA needed to sustain, or they had to prove the applicant's intent to operate the car. The applicant was under the impression sitting behind the wheel was enough to prove the guilt. The applicant deployed with the rear detachment approximated two months later. The applicant had over 43 million dollars in equipment hand receipted to them and returned after one year without any losses, accountability issues, or errors. The applicant was injured during the deployment when mortar fire detonated in the vicinity. After the deployment, the applicant received the Good Conduct Medal and an Army Commendation. After the criminal case was disposed of, the applicant received word the higher command was sending the applicant to an Administrative Separation Board. Despite not having a problem with alcohol, the applicant entered and completed ASAP at the advice of the attorney. Upon receiving the charges, the applicant had never been served notice of failing any urinalysis nor had the applicant ever used marijuana. The applicant had never been asked any questions about the charges, which seemingly constituted a rape. The Board found the applicant guilty of DWI based upon the applicant's ill-advised plea and recommend the applicant be separated with under other than honorable conditions discharge. Because of the characterization, the applicant cannot use earned Post 9/11 GI Bill benefits. The applicant believes they should not have been discharged and should have been counseled and punished for the attempt to spare the spouse a ticket by posing as the driver. b. Board Type and Decision: In a records review conducted on 1 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the applicant's basis for separation - 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, and the reentry code to RE-3. 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-4 / Under Other Than Honorable Conditions b. Date of Discharge: 14 June 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 February 2013 (2) Basis for Separation: The applicant was informed of the following reasons: Between on or about 29 October 2012 and 26 November 2012, the applicant wrongfully used marijuana, a schedule I control substance. Between on or about 13 November 2012 and 13 December 2012, the applicant wrongfully used marijuana, a schedule I control substance; On or about 17 January 2013, the applicant was convicted of operating a motor vehicle while intoxicated at or near Watertown, New York; and, On or about 21 March 2013, the applicant caused K. H. to engage in a sexual act, by placing K. H. in fear of K. H. or spouse would be subjected to death or grievous bodily harm. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 22 February 2013 (5) Administrative Separation Board: In an undated memorandum, the applicant was notified to appear before an administrative separation board and advised of rights. It was noted the applicant refused to sign the notification memorandum on 23 April 2013 On 9 May 2013, the administrative separation board convened, and the applicant appeared with counsel. The Board determined three of the four reasons listed in the notification memorandum 2x wrongful use of marijuana and sexual assault - were not supported by a preponderance of the evidence. The Board found that the DUI was supported by the preponderance of the evidence and recommended the applicant's discharge with characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: 29 May 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 June 2010 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 28 / High School Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92Y10, Unit Supply Specialist / 8 years, 7 months, 13 days d. Prior Service / Characterizations: USAR, 18 June 2002 - 27 August 2002 RA, 28 August 2002 - 2 March 2004 / GD (Break in Service) ARNG, 17 July 2006 - 23 June 2010 / GD e. Overseas Service / Combat Service: SWA / Afghanistan (20 March 2011 - 12 February 2012); Iraq (14 February 2003 - 11 December 2003) f. Awards and Decorations: ICM-2CS, ARCOM, AAM, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, OSR-2, NATOMDL, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 14 January 2011, reflects police observed a blue in color 2004 Lincoln traveling at 50 mph in a 30 mph zone. A traffic stop was initiated, and the applicant was identified as the operator with P. as the registered owner. An odor of an alcoholic beverage was detected emanating from the applicant's breath. The applicant was administered a field sobriety test which the applicant failed and was arrested and administered a datamaster test which resulted in a .18 percent BAC. A NYSPIN check revealed the applicant only had a NY learner permit. Fort Drum police were notified and the applicant was transported to the Fort Drum police station where the applicant was read a post driving privileges suspension letter and released to the unit. The applicant was charged with: Aggravated Driving while Intoxicated NYVTL 1192 (2A)(3) (Civil) (Off Post); Speed in Zone 50MPH in a 30MPH Zone NYVTL 1180(D) (Civil) (Off Post); and Operating out of Class NYVTL 509-2 (Civil) (Off Post) Electronic Copy of DD Form 2624, dated 20 December 2012, reflects the applicant tested positive for THC 115, during an Inspection Random (IR) urinalysis testing, conducted on 26 November 2012. City Court of Watertown document, dated 17 January 2013, reflects the applicant plead guilty to the charge of OP MV while intoxicated. The sentenced consisted of $500 fine plus a $395 surcharge, license was revoked, DDP mandatory - prohibited from driving without IID installed for six months. CID Report of Investigation, dated 25 January 2013, investigation established probable cause to believe the applicant consumed marijuana as determined by urinalysis. FG Article 15, dated 29 January 2013, for wrongfully using marijuana (between on or about 29 October 2012 and on or about 26 November 2012). The punishment consisted of a reduction to E-1; forfeiture of $758 pay per month for two months (suspended); and extra duty and restriction for 45 days. Electronic Copy of DD Form 2624, dated 22 January 2012, reflects the applicant tested positive for THC 251, during an Inspection Random (IR) urinalysis testing, conducted on 13 December 2013. CID Report of Investigation, dated 6 February 2013, investigation established probable cause to believe the applicant consumed marijuana as determined by urinalysis. Report of Proceedings by Board of Officers, dated 7 May 2013, reflects the Board determined three of the four reasons listed in the notification memorandum - 2x wrongful use of marijuana and sexual assault - were not supported by a preponderance of the evidence. The Board found that the DUI was supported by the preponderance of the evidence and recommended the applicant's discharge with characterization of service of under other than honorable conditions Developmental Counseling Forms, for testing positive on two consecutive urinalyses; two occasions of failure to report; late for formation; traveling more than 75 miles without a pass/leave; traveling outside the US without pass/leave; absence without leave for more than 24 hours; and, loss of military ID card. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provided a statement that reflects the applicant receives VA treatment for TBI/PTSD and is pending a VA disability rating. (2) AMHRR Listed: Report of Medical History, dated 15 January 2013, the examining medical physician noted in the comments section: On sleep meds for over a year, behavior health; severe depression and worry. Report of Medical History, dated 23 January 2013, the examining medical physician noted in the comments section: Headache syndrome documented; no TBI documented in EMR. Report of Mental Status Evaluation, dated 7 February 2013, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong. The applicant had been screened for PTSD and mTBI. The PTSD screen was negative and the mTBI screen was positive. The applicant was referred for a comprehensive mTBI evaluation. The applicant met medical retention standards per AR 40-501. The applicant was diagnosed with: Axis I: Adjustment Disorder with anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; attorney brief with listed attachments 1 through 8. 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), 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) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 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 under other than 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 applicant contends not driving while intoxicated; however, pleading guilty due to the advice of the attorney. The applicant further contends switching seats with the spouse who had a suspended license. The applicant provided a copy of City Court of Watertown New York Court document, dated 17 January 2013, which reflects the applicant pled guilty to operating MV while intoxicated and was sentenced to a $500 fine plus a $395 surcharge, license revoked, DDP mandatory-prohibited from driving without IID installed for six months. The applicant contends never being served notice for failing a urinalysis and never knowingly using marijuana. The ADSEP summary of proceedings includes the applicant's testimony that he did not knowingly use marijuana (smoked hookah of Pakistani cricket team) The AMHRR contains Electronic Copy of DD Form 2624, dated 20 December 2012, which reflects the applicant tested positive for THC 115, during an Inspection Random (IR) urinalysis testing, conducted on 26 November 2012 and Electronic Copy of DD Form 2624, dated 22 January 2012, reflects the applicant tested positive for THC 251, during an Inspection Random (IR) urinalysis testing, conducted on 13 December 2013. The applicant also received FG Article 15, dated 29 January 2013, for wrongfully using marijuana (between on or about 29 October 2012 and on or about 26 November 2012). The punishment consisted of a reduction to E-1; forfeiture of $758 pay per month for two months (suspended); and extra duty and restriction for 45 days. The applicant contends the applicant should not have been discharged but instead should have been counseled and punished for the DWI incident. The applicant contends that an officer in the chain of command believed any off-post arrest or charges equaled to guilt. The applicant's spouse provided a statement that corroborates the applicant's assertion of switching seats with the spouse who had a suspended license. The evidence of the AMHRR shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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, Adjustment Disorder, Anxiety, and Depression. (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 an Adjustment Disorder, Anxiety, and Depression. The applicant has also been diagnosed by the VA with combat-related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that there is evidence of BH conditions that provide mitigation for the basis of separation. The applicant was diagnosed in service with an Adjustment Disorder, Anxiety, and Depression. The applicant has also been diagnosed by the VA with combat-related PTSD. Given the nexus between PTSD, Depression, and self-medicating with substances, the applicant's DUI is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighed the medically mitigated - DUI. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and accordingly voted to upgrade the discharge, including the narrative reason for discharge, based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the applicant's basis for separation. (2) The applicant contends good service, including a combat tour. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the applicant's basis for separation. (3) The applicant contends not driving while intoxicated; however, pled guilty due to the advice of the attorney. The applicant contends that the applicant switched seats with the spouse who had a suspended license. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression applicant's outweighing the basis for separation. (4) The applicant contends never being served notice for failing a urinalysis and never using marijuana. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the applicant's basis for separation. (5) The applicant contends they should not have been discharged; however, should have been counseled and punished for the DWI incident. An officer in the chain of command believed any off-post arrest or charges equaled guilt. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the applicant's basis for separation. (6) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined the discharge is inequitable based on the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the basis for separation - DUI. Therefore, the Board voted to grant relief as outlined below. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD, Adjustment Disorder, Anxiety, and Depression outweighing the applicant's basis for separation - 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 Board voted to change the RE code to RE-3. 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: RE-3 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 AR20210001948 1