1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, being separated from the military for a DUI the applicant was never charged with and was found not guilty. The applicant states they should have never been separated from the military and was chaptered citing patterns of misconduct. A single incident out of three years is not considered a pattern of misconduct. For this reason, the applicant states the service to the country should be considered honorable. b. Board Type and Decision: In a records review conducted on 18 April 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's PTSD and MST outweighing the applicant's DUI and disobeying orders 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 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: 12 February 2016 c. Separation Facts (1) Date of Notification of Intent to Separate: 7 December 2015 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant drove under the influence of alcohol on or about 7 October 2015 and disobeyed two separate provisions of a lawful written order on or about 14 June 2015. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 16 December 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 January 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 March 2015 / 2 years b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 86 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91B10, Wheeled Vehicle Mechanic / 2 years, 11 months, 17 days d. Prior Service / Characterizations: RA, 26 February 2013 - 23 March 2015 / HD e. Overseas Service / Combat Service: Germany, Korea / None f. Awards and Decorations: NDSM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 11 October 2015, on or about 14 June 2015, disobey a lawful order twice. The punishment consisted of a reduction to E-1 and extra duty and restriction for 45 days. General Officer Memorandum of Reprimand, dated 16 November 2015, reflects, on 7 October 2015, the applicant drove a vehicle into the ditch between an Arby's and a Super 8 Motel. Upon contact, the officer noticed the applicant's eyes were bloodshot; the applicant's speech was slurred and there was a strong odor of an alcoholic beverage emitting from the applicant's breath. The applicant was administered a standardized field sobriety test, which the applicant failed. After being read the Georgia Implied Consent Notice, the applicant refused to take the state breath test. The applicant was cited for DUI. In accordance with Army Regulation 27-10, paragraph 3-3b and Army Regulation 190-5, paragraph 2-7a(2). Four Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: Rehabilitation Failure of the Army Substance Abuse Program (ASAP) dated 13 October 2015, reflects the Soldier was a Command referral after a domestic incident involving alcohol. An initial screening and evaluation made by the counseling staff revealed a diagnosis of Alcohol Abuse. The rehabilitation team meeting with command, counselor and applicant was held on 16 September 2015, and the Soldier was enrolled in the MAP outpatient program to participate in ADAPT/Prime For Life and Phase II/Women's Group. Attendance at Alcoholics Anonymous Meetings was also recommended. On 6 October 2015, while enrolled in ASAP, the applicant was arrested for DUI. Based on the applicant's continued alcohol abuse while enrolled in the ASAP, further rehabilitation efforts in a military environment are not practical. Such Soldiers generally do not have potential for continued military service and should not be retained. The applicant may however continue in ASAP services while awaiting chapter discharge. It is the considered opinion of the ASAP staff, in consultation with the commander, the Soldier be separated from military service as a rehabilitation failure. Report of Medical History, dated 19 November 2015, the examining medical physician noted in the comments section: Anxiety due emotional PTSD; ASAP Counseling; Behavioral Health Counseling. Report of Mental Status Evaluation, dated 13 November 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 and mTBI with negative results. However, the applicant is currently being treated for mild TBI. 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: Axis I: Substance use disorder. The applicant completed command directed MSE as command is pursuing chapter 14-12B due to the applicant being arrested for DUI, having two separate domestic violence incidents, and failing out of the ASAP program. The applicant reports no significant behavioral health treatment history and recently began seeking treatment at the EBH clinic due to anxiety and prior relationship problems. The applicant currently denies, symptoms, of significant mental health disorder/defect and displays no observable signs of distress currently. The applicant adamantly denies thoughts of harming oneself or others. The applicant cleared from Division Behavioral Health for any administrative action deemed appropriate by the United States Army the United States Army. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Self authored statement; court documents; UCMJ Regulation page 119; two DA Form 4856; copy of text message; two letters of support; Memorandum dated 15 October 2015; Memorandum dated 7 December 2015; Memorandum, dated 16 December 2015; Memorandum, dated 25 November 2015; Balbo & Gregg Attorneys at law; DA Form 2823. 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-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 being separated from the military for a DUI the applicant was never charged with and was found not guilty. The applicant provided a letter from Balbo & Gregg Attorneys at law, dated 24 November 2015, which reflects the City Prosecutor had agreed to dismiss the DUI charge if the applicant completed an ASAP evaluation, Prime for Life class, MADD Victim Impact Panel, and performed 40 hours of community service. The Court agreed to schedule the matter for final adjudication on 26 January 2016, so the applicant would have time to get all the classes and community service hours done. A dismissal means the applicant would be not guilty of any DUI charges. However, the Rehabilitation Failure of the Army Substance Abuse Program (ASAP), dated 13 October 2015, reflects on 6 October 2015, while enrolled in ASAP, the applicant was arrested for DUI. Based on the applicant's continued alcohol abuse while enrolled in the ASAP, further rehabilitation efforts in a military environment are not practical. Such Soldiers generally do not have potential for continued military service and should not be retained. The applicant may however continue in ASAP services while awaiting chapter discharge. It is the considered opinion of the ASAP staff, in consultation with the commander, the Soldier be separated from military service as a rehabilitation failure. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends they should have never been separated from the military and was chaptered citing patterns of misconduct. The AMHRR reflects the applicant was discharged for Misconduct (Serious Offense). The applicant received an FG Article 15, dated 11 October 2015, on or about 14 June 2015, for disobeying a lawful order twice. The punishment consisted of a reduction to E-1 and extra duty and restriction for 45 days and a Rehabilitation Failure of the Army Substance Abuse Program. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends a single incident out of three years is not considered a pattern of misconduct. Army Regulation 635-200, paragraph 3-5, 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's AMHRR includes a Report of Mental Status Evaluation, dated 13 November 2015, reflecting 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 and mTBI with negative results. However, the applicant is currently being treated for mild TBI. 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: Axis I: Substance use disorder. The applicant completed command directed MSE as command is pursuing chapter 14-12B due to applicant being arrested for DUI, having two separate domestic violence incidents, and failing out of the ASAP program. The applicant reports no significant behavioral health treatment history and recently began seeking treatment at the EBH clinic due to anxiety and prior relationship problems. The applicant denied symptoms of significant mental health disorder/defect and displayed no observable signs of distress. The applicant adamantly denied thoughts of harming oneself or others. The applicant cleared from Division Behavioral Health for any administrative action deemed appropriate by the United States Army. Also, a Report of Medical History, dated 19 November 2015, the examining medical physician noted in the comments section: Anxiety due emotional PTSD; ASAP Counseling; Behavioral Health Counseling. The third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct while in the Army. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD and MST. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the applicant has been diagnosed with PTSD (SC) and there are references to sexual harassment (MST) and a relevant prior history of abuse in applicant's medical records. (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 a service-connected diagnosis of PTSD which appears in part related to history of MST. The applicant also notes compelling evidence of PTSD-related symptoms associated with prior abusive relationship that under liberal consideration guidelines may have reasonably impacted applicant's behavior on Active Duty. The conditions result in partial mitigation of the circumstances associated with discharge. There is a nexus between PTSD and substance misuse, therefore PTSD mitigates the DUI charge noted in applicant's record; PTSD does not result in failure to distinguish between right and wrong and does not generally mitigate failure to obey a lawful order or regulation. (4) Does the condition or experience outweigh the discharge? Yes. The ADRB applied liberal consideration and found that the applicant's PTSD and MST outweighed the DUI basis for separation. b. Response to Contention(s): (1) The applicant contends being separated from the military for a DUI the applicant was never charged with and was found not guilty. The Board considered this contention and determined that preponderance of the evidence supported the DUI misconduct did occur. However, the applicant's PTSD and MST mitigated the applicant's DUI basis of separation. Therefore, an upgrade is warranted. (2) The applicant contends they should have never been separated from the military, was chaptered citing patterns of misconduct. 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 and MST mitigating the applicant's DUI basis for separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. 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 and MST mitigating the applicant's DUI basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD and MST outweighing the applicant's DUI portion of the 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 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 PTSD and MST mitigated the applicant's 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; however, the unmitigated misconduct of failure to obey and order is minor misconduct. 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 AR20210002002 1