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, the applicant would like to pursue a post military education utilizing the Post 9/11 GI Bill. The applicant wishes to be a productive member of the community and State. The GI Bill would help the applicant pursue a career in welding a profession in dire need throughout the county. b. Board Type and Decision: In a records review conducted on 21 March 2023, and by a 3-2 vote, the Board determined the discharge is inequitable based on applicant's Adjustment Disorder and TBI outweighing the basis for applicant's separation - ASAP Failure, FTRs, and providing alcohol to a minor. 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: 4 November 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 September 2015 (2) Basis for Separation: The applicant was informed of the following reasons: After successfully completing the Army Substance Abuse Program (ASAP) twice, the applicant was re- enrolled in the program on or about 31 March 2015. On or about 11 May 2015, the applicant was declared an ASAP failure. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 1 September 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 29 September 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 February 2012 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 8 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (2 November 2013 - 2 June 2014) f. Awards and Decorations: ACM-CS, ARCOM, AGCM, NDSM, GWOTSM, ASR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 5 May 2015, on or about 23 March 2015, as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of duties, conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. The punishment consisted of a reduction to E-3; forfeiture of $479 pay; and extra duty and restriction for 14 days. Memorandum, Synopsis of Rehabilitation Efforts, dated 11 May 2015, reflects the applicant was initially a command referral to the ASAP on 27 August 2013 for alcohol. The applicant was screened on 3 September 2013 and met DSM IV diagnostic criteria for Alcohol Abuse. A Rehabilitation Team Meeting (RTM) was held on 18 September 2013 with the applicant, the chain of command and the ASAP Counselor at which time the applicant was enrolled in Level I Outpatient Program. The applicant was successfully discharged from treatment on 17 October 2013 as the result of a pending deployment. The applicant was an Investigation/Apprehension referral to the ASAP on 14 July 2014 as the result of a Providing Alcohol to a Minor and Open Container charge. The applicant was screened on 22 July 2014 and continued to meet DSM IV diagnostic criteria for Alcohol Abuse. A RTM was held 16 September 2014 with the applicant, 1SG and the ASAP Counselor at which time the applicant was enrolled in the level I Outpatient Program. The applicant attended group and individual counseling session prior to being successfully discharged from ASAP on 19 February 2015. The applicant was again a Command referral to the ASAP on 31 March 2015 as the result of a failure to report for morning formation and when located produced BAC of .12. A RTM was held on 6 May 2015 with the applicant, 1SG and ASAP Counselor at which time the applicant was reenrolled in the ASAP Level I Outpatient. The applicant's 1SG also declared the applicant a Rehabilitation Failure in accordance with the SecArmy's Directive 2012-07, Paragraph 3.a. The applicant agreed to attend group and individual counseling sessions until the chapter discharge was completed. Numerous 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: Report of Mental Status Evaluation, dated 16 June 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 negative results and mTBI with positive results. The Service Member was referred for a comprehensive mild Traumatic Brain Injury evaluation. The applicant was initially screened positive for mTBI, but after further evaluation Soldier does not meet criteria for mTBI. The applicant was diagnosed with: Axis I: Alcohol Abuse (by history) 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 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 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 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. The applicant contends by using the GI Bill it will help the applicant to pursue a career in welding which will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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 and TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence of Adjustment Disorder diagnosed during active duty, and post- service VA evaluation citing TBI associated with service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant presents with two potentially mitigating conditions, adjustment disorder and mild TBI. Adjustment Disorder is documented formally in the record and under liberal consideration there is reasonable data to accept mTBI as present during active service. The nature of the adjustment disorder does not mitigate the offenses leading to discharge. However, the natural course and sequelae of mild TBI does often include use of substances to self-medicate; it is therefore reasonably related to ASAP failure; also FTRs are mitigated. The nature of applicant's TBI does not appear to impair the ability to differentiate right from wrong and adhere to the right and would not mitigate providing alcohol to a minor. (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 Adjustment Disorder and TBI outweighed the basis for applicant's separation. Response to Contention(s): The applicant contends an upgrade would allow educational benefits through the GI Bill, which would then allow the applicant to then pursue better employment. 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. b. The Board determined that the discharge is inequitable based on applicant's Adjustment Disorder and TBI outweighing two of the three acts of misconduct that were the basis of the applicant's separation - ASAP Failure and FTRs. c. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Adjustment Disorder and TBI outweighed most of the basis for applicant's separation - ASAP Failure and FTRs. The remaining misconduct was not significant enough to undermine the applicant's Honorable service. 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 AR20210002097 1