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 charges the applicant was accused of committing had not been filed against the applicant in a court of law. The applicant desires to become eligible for re-enlistment. Now the applicant is of sober mind and clear judgement, if granted a second chance, the applicant will whole-heartedly dedicate oneself to the military service with full integrity and gratitude. b. Board Type and Decision: In a records review conducted on 30 September 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: 2 December 2016 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 November 2016 (2) Basis for Separation: The applicant was informed of the following reasons: On 5 September 2016, the applicant was apprehended by Military Police for being drunk and disorderly as well and brandishing a knife. In addition to this, the applicant was involved in a violent crime in Seattle on 30 October 2016. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 November 2016 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 November 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 November 2013 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13F10, Fire Support Specialist / 3 years, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR / The applicant’s AMHRR reflects award of the KDSM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Civil Authorities (CCA),” effective 30 October 2016; and, From “CCA” to “PDY,” effective 3 November 2016. Serious Incident Report (SIR), dated 5 October 2016, reflects the applicant was involved in an incident resulting in unfavorable public perception or significant negative media attention. On 30 1000 October 2016, D/1-37 FA was informed the applicant was detained by the King County Sherriff s Department (KCSD) ICW an ongoing investigation of an armed-robbery (1st degree) in Seattle. Early on 30 October 2016, Seattle Police were dispatched to a call involving an attempted robbery. Officers contacted the applicant and SPC N. and witnesses positively identified the applicant and SPC N. as possible suspects. During their arrest, officers identified a firearm tucked in SPC N.’s waistband matching descriptions provided by witnesses. Both Soldiers were arrested and were detained by KCSD. KCSD had up to 72-hours to determine if Soldier(s) would be charged. Bond for the applicant had been denied. Memorandum, Subject: Disqualification of the Army Good Conduct Medal, dated 4 November 2016, reflects the applicant was disapproved for the award of the Army Good Conduct Medal for the period of Active Duty Service from 4 November 2013 to 4 November 2016 due to Adverse Action, infractions of Army Values as noted on the applicant’s counseling statements. i. Lost Time / Mode of Return: None j. Applicant provided and/or AMHRR listed Behavioral Health Conditions: Report of Mental Status Evaluation, dated 4 November 2016, reflects the applicant endorsed current suicidal thoughts without plan or intent and denied homicidal ideation, plans or intent. The applicant was not suffering from a mental disease or defect of significant severity, and thus is able to distinguish from right and wrong, and intelligently participate in administrative proceedings. The applicant was mentally responsible for behavior and possesses sufficient mental capacity to participate intelligently in any administrative proceedings deemed appropriate by Command. The applicant was diagnosed with: Alcohol Dependence uncomplicated (Per HER). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states being of a sober mind and clear judgement. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the charges the applicant had been accused of committing, had not been filed against the applicant in a court of law. The notification of initiation of separation proceedings reflects the applicant was notified the specific reasons for separation were for being apprehended by Military Police for being drunk and disorderly and brandishing a knife; and, for being involved in a violent crime in Seattle. The reasons for separation did not include charges in a court of law. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant desires to rejoin the Military Service. 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. The applicant contends being of a sober mind and clear judgement since the discharge. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Adjustment Disorder, being a victim of Intimate Partner Violence (IPV), and Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder and was a victim of IPV. (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 basis for separation is not mitigated by an Adjustment Disorder. Specifically, being drunk and disorderly and brandishing a knife are not a progression or sequela of Adjustment Disorder. An Adjustment Disorder is a low level, temporary difficulty adjusting or coping with psychosocial stressors that do not impair cognitive abilities; the diagnosis would not impact ability to know right from wrong and understand the consequences. However, the IPV partially mitigates the basis for separation, drunk and disorderly, as it is possible IPV victimization contributed to alcohol use. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor’s opine, the Board determined that the applicant’s Adjustment Disorder or IPV victimization outweighed the basis for applicant’s separation – brandishing a knife and being involved in a violent crime – due to the serious and violent nature of the offenses. b. Response to Contention(s): (1) The applicant contends the charges the applicant had been accused of committing, had not been filed against the applicant in a court of law. The Board considered this contention and determined that the evidentiary standard for an administrative separation is different than a civilian criminal proceeding in accordance with AR 635-200. The separation authority determined by a preponderance of the evidence that the applicant committed the offenses of drunk and disorderly, brandishing a knife, and involvement in a violent crime. However, the Board did find that there is insufficient evidence to support the violent crime offense. The Board also found mitigation for the drunk and disorderly offense non-persuasive during its deliberations. The resolution or filing of charges in civilian sector is inconsequential to a discharge from the military, as the Board considered the totality of the applicant’s service record, it was determined that the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By brandishing a knife and being involved in a violent crime, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant desires to rejoin the Military Service. The Board voted to maintain the 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. (3) The applicant contends being of a sober mind and clear judgement since the discharge. The Board recognizes the applicant’s pursuit to become a better person and move on, however determined that relief was not warranted due to the serious nature of the applicant’s offense of brandishing a knife. Thus, the discharge was proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 not to change the applicant’s characterization of service because, after applying liberal consideration of all the evidence before the Board, the applicant’s IPV experience only mitigated the offense of drunk and disorderly. However, the IPV victimization nor the Adjustment Disorder could excuse or mitigate the offense of brandishing a knife, due to the violent nature of that offenses. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s General discharge was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to Honorable. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (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 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20210002400 1