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 and a change to the Separation Code. The applicant seeks relief contending, in effect, the commanding officer abused discretion and unjustly and erroneously awarded the applicant an other than honorable discharge. The applicant’s service has been honest and faithful, as a positive aspect of conduct or performance of duty outweigh the negative aspects of conduct or performance of duty, as documented in the service record. The applicant had two isolated lapses in judgment after over 24 years of service in both the United States Naval Reserves and United States Army. The applicant had a spotless disciplinary record prior to the first incident. The conduct and performance displayed by the applicant must be taken into consideration when determining the characterization of discharge. The applicant has also taken all steps necessary by continuing to seek out substance abuse counseling to maintain sobriety. The applicant has been able to get a driver’s license back in the State of Georgia as well as obtain a Secret Security Clearance while teaching Soldiers of the United States Army in Satellite Communication. The applicant was a proven superior performer from the time the applicant entered the military and to receive a discharge characterization of Other Than Honorable is far too harsh. b. Board Type and Decision: In a records review conducted on 18 August 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. BOARD DISCUSSION AND DETERMINATION: 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: 17 October 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 May 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On 14 December 2006, the applicant drove while intoxicated, rendering a BAC of approximately 0.152 percent. On 20 October 2007, the applicant drove while intoxicated, while rendering a BAC of approximately 0.157 percent. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 May 2008 (5) Administrative Separation Board: On 30 July 2006, the applicant was notified to appear before an administrative separation board and advised of rights. On 26 August 2008, the administrative separation board convened, and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 26 September 2008, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 26 September 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 February 2006 / Indefinite b. Age at Enlistment / Education / GT Score: 43 / HS Graduate / 122 c. Highest Grade Achieved / MOS / Total Service: E-6 / 25S30, SATCOM System Operator-Maintainer / 22 years, 4 months, 28 days d. Prior Service / Characterizations: USNR, 2 May 1984 – 3 October 1984 / HD USN, 4 October 1984 – 27 April 1993 / HD (Break in Service) RA, 20 July 1995 – 15 July 1999 / HD RA, 16 July 1999 – 30 October 2001 / HD RA, 1 November 2001 – 22 February 2006 / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ARCOM-6, AAM-2, AGCM-3, NRMSM, NDSM-2, GWOTSM, KDSM, ASR, OSR-2, NVARCRIN, NVCSPWIN, g. Performance Ratings: December 2005 – July 2006 / Among the Best 1 August 2006 – 31 January 2007 / Marginal 1 February 2007 – 31 August 2007 / Among the Best 3 September 2007 – 2 September 2008 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 19 April 2007, The applicant is hereby reprimanded for driving while intoxicated. On 14 December 2006, the applicant drove a vehicle while intoxicated. It was determined a Blood Alcohol Content (BAC) of 0.152 percent at the time of the incident, which is more than the Korean law standard of .05 percent BAC. The applicant proceeded towards the Gumi interchange of gyungbu highway, located in Sinpyung dong Guni-si. Due to the applicant’s intoxication, the applicant failed to notice a stationary vehicle in the path. The applicant collided with the rear end of the stationary vehicle. A Korean National, S., was inside the vehicle at the time of the collision. The accident caused S. to suffer spinal injuries, which required extensive medical treatment. FG Article 15, dated 4 May 2007, for wrongfully being off installation during the hours of curfew on 4 June 2006. The punishment consisted of a forfeiture of $1044.50 pay per month for two months and extra duty and restriction for 45 days. Military Police Report, dated 7 November 2007, reflects the applicant was apprehended for: Driving under the influence; Failure to stop for a stop sign; Failure to maintain lane of travel (off post). Army Substance Abuse Program (ASAP) Enrollment form, dated 21 October 2007, reflects the applicant self-referred in the ASAP. General Officer Memorandum of Reprimand, dated 20 November 2007, for misconduct on 20 October 2007, when authorities in Columbia County, Georgia, apprehended the applicant for operating a motor vehicle while under the influence of alcohol. A deputy of the Columbia County Sheriff’s Department followed the applicant for approximately 1/8th of a mile during which the applicant was traveling at a very low rate of speed. The deputy observed the applicant proceeded through a stop sign without coming to a complete stop. Upon initiating a traffic stop and contacting the applicant, the deputy detected the odor of an alcoholic beverage emitting from the applicant. The deputy administered an alco-sensor test which results indicated positive for alcohol. The applicant was advised of the Georgia Implied Consent Notice and later administered a breathalyzer test which resulted in a reading of .157 percent Blood Alcohol Content. Report of Mental Status Evaluation, dated 7 January 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a Psychiatric Diagnostic interview note, dated 12 February 2010, which reflects a diagnosis of Alcohol Abuse and Narcissistic Personality Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal brief and enclosures 1 through 18 and medical documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has successfully completed Substance Abuse Counselling and has obtained a Georgia Driver’s License and is currently working as a Georgia Contractor as an instructor, teaching U.S. Soldiers in Satellite Communications since February 2009, and has also obtained a Secret Security Clearance. 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 3-5c states that [a]s a general matter, characterization will be based upon a pattern of behavior other than an isolated incident except when the Soldier’s conduct or performance of duty is reflected by a single incident provides the basis for characterization. (3) 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. (4) 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. (5) 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. (6) 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. (7) 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 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 contends the Commanding officer abused discretion and unjustly and erroneously awarded the applicant an other than honorable discharge. Army Regulation 635-200, Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under chapter 14. 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, paragraph 3-5c, 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. The applicant provided a Psychiatric Diagnostic interview note, dated 12 February 2010 reflects a diagnosis of Alcohol Abuse and Narcissistic Personality Disorder. The Report of Mental Status Evaluation, dated 7 January 2008, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The MSE was considered by the separation authority. The applicant contends successfully completing Substance Abuse Counselling and has obtained a Georgia Driver’s License and is currently working as a Georgia Contractor as an instructor, teaching U.S. Soldiers in Satellite Communications since February 2009, and has obtained a Secret Security Clearance. 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: Mood Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant’s Mood Disorder existed during the applicant’s service. (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 applicant’s Mood Disorder mitigates the applicant’s DUI offenses as there is a connection between Mood Disorder and self-medication with alcohol. However, the applicant’s Mood Disorder does not mitigate the applicant’s decision to drive after the applicant decided to self- medicate that resulted in property damage and significant bodily injury to the passenger of another vehicle. (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, while the applicant’s Mood Disorder mitigated the applicant’s DUI offenses, the applicant’s Mood Disorder did not outweigh the applicant’s decision to drive after self-medicating with alcohol as the totality of the circumstances, specifically property damage and significant injury to the other driver, outweigh any mitigation which might be provided by liberal consideration guidance. b. Response to Contention(s): (1) The applicant contends the separation code (SPD) should be changed. The Board considered the applicant’s request but found insufficient evidence which would indicate the discharge was improper or inequitable. The applicant was discharged for Serious Misconduct in accordance with AR 635-200, Chapter 14-12c for two DUI offenses, one with serious damage and injury to another. Therefore, the applicant’s SPD code is properly characterized as Misconduct (Serious Offense), with the corresponding SPD code of JKQ. (2) The applicant contends the Commanding officer abused discretion and unjustly and erroneously awarded the applicant an Other Than Honorable (UOTH) discharge (upgraded to General, Under Honorable Conditions by a previous Board). The Board considered this contention and determined there is insufficient evidence in the applicant’s official record or provided by the applicant that the command acted in an arbitrary or capricious manner to warrant an upgrade to an Honorable discharge. Therefore, the applicant’s General Discharge is proper and equitable. (3) The applicant contends good service. The Board considered the totality of the applicant’s service record, but determined 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 getting two (2) DUIs, one involving a car accident and serious injury to the other driver, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends successfully completing Substance Abuse Counseling and has obtained a Georgia Driver’s License and is currently working as a Georgia Contractor as an instructor, teaching U.S. Soldiers in Satellite Communications since February 2009, and has obtained a Secret Security Clearance. The Board considered this contention and determined that the applicant’s post-service accomplishments did not outweigh the serious nature of the applicant’s misconduct. 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 after applying liberal consideration of all the evidence, because, while the applicant’s Mood Disorder mitigated the applicant’s DUI offenses, the applicant’s Mood Disorder does not outweigh the the applicant’s decision to drive after self-medicating with alcohol as the totality of the circumstances, specifically property damage and significant injury to the other driver, outweigh any mitigation which might be provided by liberal consideration guidance. The Board also considered the applicant’s contention relating to the applicant’s Command abusing discretion and found that there is insufficient evidence in the applicant’s official records or provided by the applicant to conclude that the Command acting in an arbitrary or capricious manner. Finally, the Board considered applicant’s good service, post-service accomplishments, and the applicant’s behavior health condition 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 AR20210002694 1