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 requests an upgrade to honorable and an RE code change. The applicant seeks relief contending, in effect, having an impeccable military record. The applicant's only crime was the house did not meet housing cleanliness standards. The applicant was apprehended and suspected of endangering the welfare of a child. On 6 July 2015, the Cabinet for Health and Family Services found the allegations of endangering the welfare of a child was unsubstantiated. The applicant was never charged with or found guilty of child neglect or endangerment or received any UMCJ action. The applicant contends the chain of command did not show any evidence which warranted a discharge for misconduct in the commission of a serious offense. The applicant believes it is only fair to receive an honorable characterization of service, and the reentry code changed from RE code 3 to 1, so the applicant can serve the country and community again. Board Type and Decision: In a records review conducted on 4 May 2023, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, and the charge of endangerment was not founded, as a result it is inequitable. Accordingly, 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 determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. 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: 15 December 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 October 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On 7 July 2015, the applicant endangered the welfare of a child under the age of 16 years, by having unsanitary living conditions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 October 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 November 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 October 2012 / 4 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 5 years, 4 months, 15 days d. Prior Service / Characterizations: RA, 1 June 2010 - 25 October 2012 / HD e. Overseas Service / Combat Service: SWA / Iraq (20 May 2011 - 21 December 2011) f. Awards and Decorations: AAM-2, AGCM, NDSM, GWOTEM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Developmental Counseling Form, for on post housing being in an unsatisfactory state of cleanness. The applicant provided a copy of the Cabinet for Health and Family Services Memorandum, dated 9 September 2015, reflecting on 7 July 2015, the Cabinet for Health and Family Services, Department for Community-Based Services received a report of suspected child abuse or neglect as defined in the Kentucky Revised Statute regarding a child in the applicant's care. Based on the information received through the investigation of this report the allegations have bend found to be unsubstantiated. Orders Number 335-0612, dated 1 December 2015, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 15 December 2015, from the Regular Army. The applicant's Enlisted Record Brief (ERB), dated 10 April 2019, reflects the applicant was flagged for Commander's Investigation (LA), effective 9 September 2015; APFT failure (JA), effective 17 August 2015. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Report of Mental Status Evaluation, dated 31 August 2015, 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; and met medical retention requirements. The applicant had been screened for PTSD with positive result and mTBI with negative results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The applicant was diagnosed with: Anxiety Disorder. Phase of Life Circumstances Problem. The applicant's PTSD; does endorse some symptoms, but they are not of a severity to cause any occupational dysfunction, nor would they warrant separation via medical channels. The applicant was seen for Chapter 14 MSE, the applicant was screened for SI/HI, and denied any safety concerns. The applicant was screened for PTSD and TBI IAW OTSG/MEDCOM policy Memo 10-040 and the findings were negative (see "Other" section above). Soldier meets medical retention per AR 40- 501 and is therefore cleared for administrative separation actions as deemed appropriate by command. Report of Medical History, dated 11 September 2015, the examining medical physician noted in the comments section: Depression and anxiety. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; DD Form 293; self-authored letter; Memorandum for CDR, dated 20 October 2015; Rebuttal for Administrative Chapter; dated 23 October 2015; Memorandum from United States Attorney Western District of Kentucky, Middle District of Tennessee, dated 20 October 2015; Enlisted Record Brief; Army Achievement Medal Certificate; Order for Award of Air Assault Badge and; Order for Award of Good Conduct Medal; Army Achievement Medal Certificate; Developmental Counseling Form, DA Form 4856 dated August 6, 2015; Administrative Separation Letter, dated 15 October 2015; three Sworn Statement; Patrol/TAl Case Paperwork Checklist MPI Case Referral; United States District Court Violation Notice, dated 7 July 2015; Two DA Form 3881; Memorandum for Commander, dated 2 November 2015; Memorandum Thru Commander, dated 13 November 2015; Memorandum for Commander, Headquarters, dated 20 November 2015. 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) 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 only crime was the house did not meet housing cleanliness standards. The applicant contends on 6 July 2015, the Cabinet for Health and Family Services found the allegations of endangering the welfare of a child unsubstantiated. The applicant provided the Cabinet for Health and Family Services Memorandum dated 9 September 2015, reflects on 7 July 2015, the Cabinet for Health and Family Services, Department for Community- Based Services received a report of suspected child abuse or neglect as define in the Kentucky Revised Statute regarding a child in the applicant's care. Based on the information received through the investigation of this report the allegations have bend found to be unsubstantiated. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends never being charged with or found guilty of child neglect or endangerment or received any UMCJ action. The applicant contends the chain of command did not show any evidence which warranted a discharge for misconduct in the commission of a serious offense. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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: Adjustment Disorder, Anxiety. (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 and Anxiety. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant Adjustment Disorder and Anxiety do not mitigate the applicant's office of child endangerment as there is no natural sequelae between an Adjustment Disorder or Anxiety and endangering a child by having unsanitary living conditions. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration, including the Board Medical Advisor opine, the Board determined that the applicant's adjustment disorder and anxiety do not outweigh the medically unmitigated basis for applicant's separation - child neglect or endangerment. b. Response to Contention(s): (1) The applicant contends only crime was the house did not meet housing cleanliness standards. The applicant contends on 6 July 2015, the Cabinet for Health and Family Services found the allegations of endangering the welfare of a child were unsubstantiated. The Board considered this contention and acknowledged the unsubstantiated allegations. Ultimately, the Board determined an upgrade is warranted. (2) The applicant contends never being charged with or found guilty of child neglect or endangerment or received any UMCJ action. The applicant contends the chain of command did not show any evidence which warranted a discharge for misconduct in the commission of a serious offense. The Board considered this contention and determined there is no evidence in the applicant's official record or provided by the applicant that the applicant's Command acted in an arbitrary or capricious manner. However, the Board determined that the charge of child endangerment or neglect was unfounded and voted to upgrade the discharge. (3) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (4) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to maintain the RE-code to a RE-3, which is a waivable code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate. c. The Board determined that the discharge was too harsh based on the applicant's length and quality of service, to include combat service, and the charge of endangerment was not founded, as a result it is inequitable. Accordingly, 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 determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. 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, and the charge of endangerment was not founded, as a result it is inequitable. 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: 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 AR20210001989 1