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, through counsel, requests for the discharge to reflect an honorable characterization of service, RE code changed from 3 to 1, and that the narrative reason for separation and separation code are corrected to show "Secretarial Authority." The applicant seeks relief contending, in effect, the facts and circumstances provided herein, that the applicant's intent was misconstrued by the chain of command, and while the applicant's actions were reckless and unacceptable as a recruiter, they were minor infractions when weighed against the vast contributions to the Army over a 15-year period of honorable service. The applicant believes that the applicant's chain of command also failed to consider years of struggle with PTSD, which would have greatly influenced their decision. Further, the applicant states the applicant's discharge is inequitable when the totality of the circumstances are examined, including the positive investment in the local community, extensive combat service in Iraq, and leadership contributions to the Army as a highly rated NCO. b. Board Type and Decision: In a records review conducted on 11 August 2022, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, post service accomplishments, and battalion commander's recommendation to locally file the GOMOR. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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: 31 January 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 December 2012 / Indefinite b. Age at Enlistment / Education / GT Score: 30 / some college / 108 c. Highest Grade Achieved / MOS / Total Service: E-7 / 79R40, Recruiter / 15 years, 11 months, 4 days d. Prior Service / Characterizations: RA, 27 February 2001 - 1 March 2003 / HD RA, 2 March 2003 - 2 June 2005 / HD RA, 3 June 2005 - 20 July 2007 / HD RA, 21 July 2007 - 13 December 2021 / HD e. Overseas Service / Combat Service: Germany, SWA / Iraq (11 May 2003 - 28 July 2004; 16 April 2005 - 17 January 2006; 10 March 2007 - 26 April 2008; 17 October 2009 - 14 September 2010) f. Awards and Decorations: BSM, ARCOM-5, AAM 4, MUC, VUA, AGCM-5, NDSM, GWOTEM, GWOTSM, ICM-5CS, NCOPDR-2, ASR, OSR-4, CAB g. Performance Ratings: 21 January 2012 - 20 January 2015 / Among the Best 21 January 2015 - 1 October 2015 / Among the Best 2 October 2015 - 21 September 2016 / Not Qualified 22 September 2016 - 27 January 2017 / Qualified h. Disciplinary Action(s) / Evidentiary Record: General Officer Reprimand, dated 3 June 2016, between on or about October 2015 until April 2016, the applicant engaged in a social activity of a personal, unofficial nature with PVT V., a former recruit, and a subject of recruiting efforts. The applicant sent inappropriate text messages saying the recruit was "beautiful" and "sexy" and requested the recruit send pictures of tattoos to personal cell phone. The applicant violated the buddy policy on several occasions, and transported PVT V., in a privately owned vehicle without at least one qualifying person present. In accordance with Army Regulation 27-10, paragraph 3-3b, the applicant is hereby reprimanded. Orders 019-0151, dated 19 January 2017, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 31 January 2017 from the Regular Army. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided medical documents, exhibits three to seven, reflect a diagnosis of PTSD and anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD From 214; DD Form 293; Attorney brief with exhibits 1 through 30. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states being actively involved in the local community where the applicant and spouse volunteer with children and youth programs at their church on a weekly basis. The applicant also claimed to be involved with the local Boy Scouts as a volunteer den leader, and to be pursuing a Bachelors degree in Business Management. 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 600-85 defines the Limited Use Policy and states unless waived under the circumstances listed in paragraph 10-13d, Limited Use Policy prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings. Additionally, the policy limits the characterization of discharge to "Honorable" if protected evidence is used. Protected evidence under this policy includes: e. 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. f. 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). g. 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-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 waiverable. Eligibility: Ineligible unless a waiver is granted. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). 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 separation code (SPD) should be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the 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 SPD code to be entered under this regulation. The applicant requests an 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 601-210, 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 having PTSD. The applicant's Army Military Human Resource Record (AMHRR) contains documentation which supports a diagnosis of in-service PTSD. The record is void of a mental status evaluation (MSE). The applicant contends the intent was misconstrued by the chain of command, and while the applicant's actions were reckless and unacceptable as a recruiter, they were minor infractions when weighed against the vast contributions to the Army over a 15-year period of honorable service. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the event which led to the discharge from the Army was an isolated incident. 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 good service, including four combat tours. The applicant contends being actively involved in the local community, where the applicant and spouse volunteer with children and youth programs at their church on a weekly basis. The applicant also claimed to be involved with the local Boy Scouts as a volunteer den leader, and pursuing a Bachelors degree in Business Management. 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: PTSD and Anxiety. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's PTSD 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 nexus between applicant's PTSD or applicant's Anxiety and behaving inappropriately as a recruiter, since neither of these BH conditions interfere with applicant'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. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, and voted that the available evidence did not support a conclusion that the applicant's PTSD or Anxiety outweighed the accepted medically unmitigated basis for applicant's separation - inappropriate contact with a recruit while serving as a recruiter. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention, and determined that while the characterization of service is inequitable given the totality of the applicant's circumstances, the narrative reason and accompanying SPD code for separation are proper and equitable and no further relief is warranted. (2) The applicant requests an RE code change. The Board determined that the RE-code is both proper and equitable to remain 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 having PTSD. While the ADRB liberally considered this contention, the ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the Board determined that there is no nexus between applicant's PTSD or applicant's Anxiety and behaving inappropriately as a recruiter, since neither of these BH conditions interfere with applicant's ability to distinguish between right and wrong and act in accordance with the right, as such they are not mitigating factors. (4) The applicant contends the intent was misconstrued by the chain of command, and while the applicant's actions were reckless and unacceptable as a recruiter, they were minor infractions when weighed against the vast contributions to the Army over a 15-year period of honorable service. The Board considered this contention, along with the seriousness of the applicant's misconduct. Ultimately, the Board determined the characterization was inequitable given the applicant's length and quality of service, post service accomplishments, and battalion commander's recommendation to locally file the GOMOR. (5) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention, and while also considering the totality of the applicant's circumstances, the Board voted to upgrade the applicant's characterization of service to Honorable. (6) The applicant contends good service, including four combat tours. The Board considered this contention and voted to upgrade the characterization of service due to the length and quality of service including combat tours, post service accomplishments, as well as the applicant's battalion commander's recommendations. (7) The applicant contends being actively involved in the local community, where the applicant and spouse volunteer with children and youth programs at their church on a weekly basis. The applicant claims to be involved with the local Boy Scouts as a volunteer den leader, and pursuing a Bachelor's degree in Business Management. The Board considered this contention voted to upgrade the characterization of service due to the applicant's post service accomplishments in addition to the applicant's length and quality of service, and battalion commander's recommendation to locally file the GOMOR. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, post service accomplishments, and battalion commander's recommendation to locally file the GOMOR. 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 of the applicant's length and quality of service, to include combat service, post service accomplishments, and because of the recommendations of the applicant's battalion commander regarding the filing of the applicant's GOMOR. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as 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: Yes b. Change Characterization to: Honorable 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 AR20210002594 1