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 was wrongly accused of committing insurance fraud in 2015. The applicant was barred from reenlistment for the arrest and told if the charges were dismissed, the applicant would be able to continue military service or ETS in July 2017. The command team for the applicant's Brigade was deployed to Afghanistan in December of 2016. In February, the applicant was told by the Rear Detachment command team the applicant would be chaptered, even though the applicant was never charged. The command team was told by the court system the court date for dismissal was coming up, and because the deployed colonel had personally told the applicant a few months before, the applicant would not be chaptered since the charges were getting dismissed. The applicant went through the Army Chapter Appeal Process, and the packet was submitted on a Friday at 0930 by the First Sergeant, who was told of the acting colonel's decision at 1015 the same day. The applicant believes the statements from the supervisors were not considered during the appeal. The applicant states never receiving any disciplinary action during the 5-year military career. The applicant states serving honorably in the military and would like the records to reflect as such. b. Board Type and Decision: In a records review conducted on 29 July 2022, and by a 4-1 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (rear-d actioned separation seven months after charges were dismissed) and no further misconduct on file, the applicant's quality of service to include combat service. 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. 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: 24 April 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: 31 July 2014 b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 96 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Culinary Specialist / 5 years, 1 month, 12 days d. Prior Service / Characterizations: RA, 13 March 2012 - 30 July 2014 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (12 December 2012 - 19 September 2013) f. Awards and Decorations: ACM-2CS, ARCOM, AGCM, NDSM, GWOTSM, ASR, NATOMDL g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: The applicant provided a Memorandum For Record, dated 10 June 2016, which reflects the purpose of the memorandum was to identify the reasons for the applicant's Initial Chapter in the United States Army. The applicant was arrested for insurance fraud on 28 August 2015, from the Civilian Law Enforcement which caused the Army to start an Initial Chapter 14-12c. The applicant was also barred from reenlistment which did not allow the applicant to be retained in the Army. The applicant could be retained in the Army if the alleged charges were dropped or dismissed. Orders 108-0018, dated 18 April 2017, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 24 April 2017 from the Regular Army. The applicant's Enlisted Record Brief (ERB), dated 8 May 2017, reflects the applicant was flagged for Involuntary Separation or Discharge (Field Initiated) (BA), effective 24 March 2017. The applicant was not eligible for reenlistment Pending Separation (9V). The applicant provided a copy of a Criminal Case Records Results, dated 19 June 2017, which reflects the charges of False Report To Police Officer; and Insurance Fraud were dismissed. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application; DD Form 214; five third-party letters; Criminal Case Records Search Results. 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 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 being told the applicant would be allowed to ETS or continue military service if the charges were dismissed against him. The applicant also contends the letters of support from supervisors were not considered during the chapter appeal. The AMHRR is void of the specific circumstances surrounding the applicant's discharge. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good performance while serving in the Army. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found the applicant's Adjustment Disorder, PTSD may mitigate the applicant's basis of separation - insurance fraud. (2) Did the condition exist or experience occur during military service? Yes. The Board Medical Advisor found that the applicant's Adjustment Disorder PTSD existed during 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 applicant's Adjustment Disorder and PTSD do not mitigated the applicant's basis of separation for insurance fraud as this behavior is not a progression or sequela of Adjustment Disorder or PTSD. (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 determined that the available evidence did not support a conclusion that any of the applicant's Adjustment Disorder or PTSD outweighed the unmitigated basis for applicant's separation - insurance fraud. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The board considered this contention and found an inconsistency with the O-6 Commander, who deployed, and the Rear-D Commander's interpretation of a statement on the initial separation memo, "that if the charges were dismissed, the applicant would be retained", and voted that relief is warranted. (2) The applicant contends being told the applicant would be allowed to ETS or continue military service if the charges were dismissed against him. The applicant also contends the letters of support from supervisors were not considered during the chapter appeal. The Board considered this contention and found an inconsistency with the O-6 Commander, who deployed, and the Rear-D Commander's interpretation and that if the charges were dismissed, the applicant would be retained. The Board deliberated on the facts and circumstances and determined that the discharge seven (7) months after dismissal of charges was overlooked by Rear-D, and relief is warranted. (3) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant's service record. c. The Board majority determined the discharge is inequitable based on the applicant's circumstances surrounding the discharge (Rear-D actioned separation seven months after charges were dismissed) and no further misconduct on file). d. Rationale for Decision: (1) The Board majority voted to change the applicant's characterization of service to Honorable because of the circumstances of the discharge, where the Rear-D misinterpreted guidance from deployed O-6 Commander in its assessment of the applicant's service status. 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 AR20210002623 1