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, serving as an airborne infantryman and deployed to Afghanistan. While conducting combat operations, the applicant was targeted alongside fellow Soldiers and civilians in a suicide vest attack (within 10 meters). The applicant has been diagnosed with TBI and PTSD, which account for 70 percent of the overall 90 percent disability rating. The applicant has since sought PTSD counseling through the VA and has been able to make many positive life changes. The applicant believes the PTSD/TBI caused the applicant to act out of character and led to alcohol abuse after returning from deployment. The applicant received a DUI in 2013, which ultimately led to the general (under honorable conditions) discharge three months short of the applicant’s four-year commitment. The applicant never received a reduction in rank or extra duty and has maintained sobriety since 2016. Going to school and receiving a degree using the GI Bill has always been a goal of the applicant. b. Board Type and Decision: In a records review conducted on 2 August 2022, and by a 5-0 vote, the Board denied the request upon finding the Board accepted basis for separation – three DUIs – 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 May 2013 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: 12 May 2009 / 4 years, 17 weeks b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P Infantryman / 3 years, 11 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (29 July 2010 – 28 July 2011) f. Awards and Decorations: AFC-CS, ARCOM, NATOMDL, MUC, NDSM, GWOTSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant’s Enlisted Record Brief (ERB), dated 22 March 2013, reflects the applicant was flagged for Alcohol Abuse (Adverse Action) (VA) and Involuntary Separation or Discharge (Field Initiated) (BA), effective 12 March 2013. General Officer Memorandum Of Reprimand, dated 27 March 2013, reflects the applicant was arrested on Fort Bragg, North Carolina, for driving while impaired after being stopped for failing to stop at a red light. Upon approaching the vehicle, the inspection officer detected an odor of alcohol emitting from the applicant’s person. The applicant refused to take a lawfully requested intoximeter test. In accordance with Army Regulation 190-5, paragraph 2-7a(2), the applicant was reprimanded. Orders 113-0284, dated 23 April 2013, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 2 May 2013 from the Regular Army. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of page three of VA rating decision letter, which reflects the applicant was granted 70 percent for PTSD with traumatic brain injury (mild cognitive deficits) effective 20 September 2016. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Narrative for ARCOM; Citation; two pages of VA rating decision; DD Form 214; third-party letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has sought PTSD counseling through the VA and has made many positive life changes. The applicant has maintained sobriety since 2016. 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 good service, including a combat tour. The applicant contends being diagnosed with TBI and PTSD by the VA, which led to the applicant’s alcohol abuse. The applicant provided a partial VA rating decision letter, which reflects the applicant was granted 70 percent for PTSD with traumatic brain injury (mild cognitive deficits) effective 20 September 2016. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran’s benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s good conduct after leaving the Army. The applicant has sought PTSD counseling through the VA and has made many positive life changes. The applicant has maintained sobriety since 2016. 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 applicant’s head Injury and PTSD may mitigate the applicant’s Board accepted basis of separation – three offenses of DUI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant’s head injury and PTSD existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined the applicant’s head injury and PTSD partially mitigate the applicant’s three DUI offenses, however, the DUI offenses do not fully mitigate the applicant’s DUI offenses because, while substance usage may be related to PTSD, the applicant’s decision to drive has no nexus with the applicant’s PTSD or head injury as these behaviors are conscious and deliberate decisions, following the applicant’s actual alcohol usage. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Advisor Medical opine, the Board determined that the applicant’s head injury and PTSD do not fully outweigh the applicant’s partially medically mitigated Board accepted DUI basis of separation due to the seriousness of the applicant’s misconduct as the applicant’s made a conscious decision to drive after the applicant’s alcohol use on three separate occasions in 2011, 2013, and 2014. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, including length and quality of service and the applicant’s combat service and determined that a discharge upgrade is not warranted based on the seriousness of the applicant’s three DUIs, two of which occurred post-ASAP treatment. (2) The applicant contends being diagnosed with TBI and PTSD by the VA, which led to the applicant’s alcohol abuse. The Board liberally considered this contention and determined the applicant’s head injury and PTSD do not fully outweigh the applicant’s partially medically mitigated Board accepted DUI basis of separation due to the seriousness of the applicant’s misconduct as the applicant’s made a conscious decision to drive after the applicant’s alcohol use on three separate occasions in 2011, 2013, and 2014.that the applicant’s three DUI charges were not mitigated by any of the diagnoses. The Board also considered the applicant’s BH conditions as factor in consideration of the totality of the applicant’s service record and determined that a discharge upgrade is not warranted due to the seriousness of the applicant’s misconduct – three DUI offenses. (3) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (4) The applicant has sought PTSD counseling through the VA and has made many positive life changes and has maintained sobriety since 2016. The Board considered this contention and commends the applicant for seeking help and making positive life changes to include sobriety, but determined that the applicant’s post-service actions do not warrant a discharge upgrade based on the seriousness of the applicant’s misconduct - driving under the influence on three separate occasions over an extended period of time. 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, despite applying liberal consideration of all the evidence before the Board, the applicant’s head injury and PTSD do not outweigh the applicant’s Board accepted partially medically mitigated basis of separation – three DUI offenses because the seriousness and frequency of the applicant’s misconduct. The Board considered the applicant’s contentions of inequity relating to the applicant’s good service, including combat and post service accomplishments of the applicant’s VA PTSD counseling, sobriety and positive life changes and determined that the totality of the applicant’s record does not warrant a discharge upgrade. 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 Discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 / 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 AR20210002638 1