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 a narrative reason change. The applicant seeks relief contending, in effect, the command made a material error of discretion by not recognizing symptoms of PTSD and discharging the applicant when retention was warranted. Further, the applicant's post service conduct warrants consideration of an upgrade. b. Board Type and Decision: In a records review conducted on 12 January 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the length of time since misconduct, prior periods of honorable service, letters of support from chain of command, and post-service accomplishments outweighing the discharge. 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: 14 February 2012 c. Separation Facts: The applicant's Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances surrounding the discharge. The applicant provided several case separation documents which the information below was derived from. (1) Date of Notification of Intent to Separate: Undated (2) Basis for Separation: The applicant was informed of the following reasons: For misconduct - wrongfully assisting another Soldier to provide a substitute for urine during a urinalysis. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 19 January 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 31 January 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 January 2008 / 3 years, 16 weeks / On 3 December 2009, the applicant voluntarily extended the enlistment by six months b. Age at Enlistment / Education / GT Score: 22 / GED / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 1 month, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (2 August 2010 - 24 June 2011); Iraq (30 June 2008 - 15 March 2009) f. Awards and Decorations: ICM-2CS, ARCOM-2, AAM-2, VUA, AGCM, NDSM, ACM- 2CS, GWOTSM, ASR, OSR-2, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant provided a copy of Memorandum for Record, dated 23 July 2011, which reflects based on the review of the investigation and available evidence, the opinion of the supporting Trial Counsel is the preponderance of the evidence illustrated there was probable cause to charge the accused SGT J. A. R, PFC E. J. W, and the applicant with a violation under the UCMJ of Article 134 (Obstruction of Justice). In addition, there was sufficient evidence to prosecute the accused with a violation of Article 134. The applicant provided a copy of Agent's Investigation Report, dated 23 July 2011, which reflects trial counsel provided a written opine, which reflected there was probable cause to believe SGT R., the applicant and PFC W. committed the offense of obstruction of justice, this case was sufficient for prosecution and no additional investigative activity was required. The applicant provided a copy of the Commander's Report, dated 19 January 2012, reflects: The applicant received a FG Article 15, dated 5 January 2012. The punishment consisted of a reduction to E-1; forfeiture of $733 pay for two months (suspended); and extra duty and restriction for 45 days (suspended). Soldier has not demonstrated sufficient desire to overcome shortcoming and be a quality member of the unit. Continued presence in the unit will reduce morale, readiness, and effectiveness. All rehabilitative attempts had been exhausted and the commander believed the applicant had no potential for useful service under conditions of full mobilization. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of VA Summary of Benefits Letter, dated 16 August 2017, which reflects the applicant was granted 50 percent disability for posttraumatic stress disorder (also claimed as anxiety condition). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; previous ADRB Case Report and Directive; ARBA CMD Letter; VA Summary of Benefits Letter; 13 third-party letters; discharge documents; previous ABCMR Record of Proceedings. 6. POST SERVICE ACCOMPLISHMENTS: Evidence in the AMHRR, reflects the applicant had been attending college and certified as an EMT in New Jersey and is gainfully employed. The applicant has received a prestigious award for service for saving a resident who was choking and became unresponsive. 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 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 general (under 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 the command made an error of discretion by not recognizing symptoms of PTSD and discharging the applicant when retention was warranted. The applicant was diagnosed with PTSD by the VA. The applicant provided a copy of VA Summary of Benefits Letter, dated 16 August 2017, which reflects the applicant was granted 50 percent disability for posttraumatic stress disorder (also claimed as anxiety condition). The Army Military Human Resource Record (AMHRR) does not contain a mental status evaluation (MSE). The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third-party statements provided with the application speak highly of the applicant and recognize the applicant's good conduct while serving and after leaving the Army. The applicant attends college, is EMT certified in New Jersey, and is gainfully employed. The applicant has received a prestigious award for service for saving a resident who was choking and became unresponsive. The Army Discharge Review Board is authorized to consider post- service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, 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, depression, and, anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for combat-related PTSD. Service connection establishes that applicant's PTSD existed during military service. There is no evidence that applicant's post service diagnoses of depression and anxiety existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that there is no natural sequela between PTSD and assisting another Soldier in providing a substitute for urine during a urinalysis since PTSD does not interfere with one's ability to distinguish between right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that that the applicant's PTSD, depression, and anxiety do not outweigh the applicant's offense of assisting another Soldier in providing a substitute for urine during a urinalysis. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined the narrative reason for discharge warrants a changed based on applicant's length and quality of service, to include combat service, the length of time since misconduct, prior periods of honorable service, letters of support from chain of command, and post-service accomplishments outweighing the discharge. (2) The applicant contends the command made an error of discretion by not recognizing symptoms of PTSD and discharging the applicant when retention was warranted. The Board considered this contention and the applicant's command not recognizing applicant's PTSD symptoms does not mitigate or excuse the misconduct of assisting another Soldier in providing a substitute for urine during a urinalysis basis for separation. However, the Board determined the narrative reason for discharge warrants a changed based on applicant's length and quality of service, to include combat service, the length of time since misconduct, prior periods of honorable service, letters of support from chain of command, and post-service accomplishments outweighing the discharge. (3) The applicant has been attending college and certified as an EMT in New Jersey and is gainfully employed. The applicant has received a prestigious award for service for saving a resident who was choking and became unresponsive. The Board considered the applicant's post-service accomplishments and determined based on applicant's length and quality of service, to include combat service, the length of time since misconduct, prior periods of honorable service, letters of support from chain of command, and post-service accomplishments outweigh the discharge, thus, an upgrade is warranted. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the length of time since misconduct, prior periods of honorable service, letters of support from chain of command, and post-service accomplishments outweighing the discharge. 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 length and quality of service, to include combat service, the length of time since misconduct, prior periods of honorable service, letters of support from chain of command, and post-service accomplishments outweigh the applicant's misconduct of assisting another Soldier in providing a substitute for urine during a urinalysis. 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 AR20210002275 1