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: The current characterization of service for the period under review is honorable. The applicant requests an upgrade to RE-code. The applicant seeks relief contending, in effect, the applicant served longer than the applicant's initial service time and the applicant was on an extension due to a deployment. The applicant was injured and had blood pressure issues towards the end of service. The applicant spoke with a service representative while on rear detachment and was told the applicant would be discharged with an honorable and the service time and awards would be updated. In a records review conducted on 14 July 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Secretarial Authority / AR 635-200, Paragraph 5-3 / JFF / RE-3 / Honorable b. Date of Discharge: 24 August 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 July 2011 (2) Basis for Separation: On 9 May 2011, the applicant was involved in spousal abuse and simple assault dispute with the spouse, J. B. Between 17 and 18 May 2011, the applicant violated a lawful order from Staff Sergeant K. B. not to have any contact with the spouse J. B. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 July 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 August 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 March 2008 / 3 years, 16 weeks / The applicant extended the most recent enlistment by a period of 7 months on 18 March 2010, giving the applicant a new ETS of: 10 February 2012. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 5 months, 4 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (1 September 2008 - 8 January 2009) f. Awards and Decorations: VUA, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Line of Duty Investigation Line of duty and Misconduct Status, dated 25 August 2009, reflects the applicant was injured when the applicant lost control of the applicant's motorcycle causing it to impact on its right side and the applicant was ejected from the vehicle (5 May 2009). The applicant was issued a lawful order by chain of command not to operate motorcycle without completing the required drivers training. The applicant did not have a motorcycle endorsement on the civilian license, nor did the applicant possess insurance on the vehicle. The applicant suffered an open fracture to the left elbow. The applicant was cited for careless operation, no motorcycle endorsement, and no insurance. The investigating officer found the injury was not in line of duty and due to own misconduct. The appointing authority agreed with the findings. Military Police Report, dated 10 May 2011, reflects the applicant was apprehended for: Simple Assault (on post) and Spouse Abuse - Civilian Victim under Article 134, UCMJ (on post). The Directorate of Emergency Services (DES) was notified by J.B.'s mother, J.B. and the applicant were fighting in the front yard of the home. Investigation revealed the applicant and spouse were involved in a verbal altercation which turned physical when the subjects struck each other with a closed fist (9 May 2011). The subjects were apprehended and transported to the DES. The investigation revealed the applicant shared prescription medication, Percocet, with the spouse. Report of Medical Examination, dated 9 June 2011, the examining medical physician noted in the summary of defects section: Recent surgery left shoulder; hypertension; high frequency hearing loss. The physician recommended to follow-up with orthopedic/physical therapy clinics and rehabilitation through the VA if necessary. The applicant needs to follow-up with primary care provider (not sure why HCTZ was discontinued). The physician qualified the applicant for service and Chapter 14-12b. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 11 May 2011, reflects the applicant underwent a safety evaluation and the examiner determined the applicant was fit for duty and not in imminent risk of danger to the applicant or others. The mental status of the Soldier is clear. The applicant was diagnosed with: Marital problem and Orthopedic. Temporary restrictions from spouse contact were appropriate. Report of Medical History, dated 24 May 2011, the examining medical physician noted in the comments section: Problems with frequent headaches, currently being seen by the TBI clinic; short term memory due to TBI; and problems falling and staying asleep. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 293; Otter Tail County Veterans Service Office letter. 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) Chapter 5, provides for the basic separation of enlisted personnel for the convenience of the government. (4) Paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. (5) Chapter 5-3 (Chapter 15 current regulation) provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided 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 identified the SPD code of "JFF" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-3, Secretarial Authority. 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 a 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's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the discharge should have been upgraded due to the injuries and health concerns and the applicant was informed the applicant would receive an honorable discharge. The applicant's current characterization for the period under review is honorable. The AMHRR reflects the applicant underwent a mental status evaluation due to safety concerns on 11 May 2011, which reflects the applicant was fit for duty and not in imminent risk of danger to the applicant or others. The mental status of the Soldier was clear. The applicant was diagnosed with: Marital problem and Orthopedic. The applicant underwent a medical examination on 9 June 2011. The examination revealed various medical conditions, to include a TBI, and the applicant was qualified for service and Chapter 14-12b. The MSE and medical examination were considered by the separation authority. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the service dates and awards need to be corrected. The applicant's requested change to the DD Form 214 does not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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: TBI, Cognitive Disorder, Generalized Anxiety Disorder, Major Depressive Disorder, MST. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant was diagnosed in service with a TBI, Cognitive Disorder, and Generalized Anxiety Disorder. The applicant is diagnosed and service-connected by the VA with Major Depressive Disorder, and the VA medical record reveals a history of MST. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that there is no natural sequelae between any of applicant's BH conditions and perpetrating spousal abuse or violating a no contact order. The Board should consider that the applicant has a history of MST, but already has an Honorable discharge by reason of Secretarial Authority. It is recommended that the RE Code remain a 3 due to service-limiting BH conditions. (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, that the available evidence did not support a conclusion that the applicant's RE-code should be upgraded due to applicant's MDD. b. Response to Contention(s): (1) The applicant contends the discharge should have been upgraded due the injuries and health concerns and the applicant was informed the applicant would receive an honorable discharge. The Board determined that the applicant's Honorable by narrative of Secretarial Authority is proper and equitable and no further relief is warranted. 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. (2) The applicant contends the service dates and awards need to be corrected. The Board determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. 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 determined the discharge was proper and equitable as the applicant discharge is already has a honorable characterization and a Secretarial Authority narrative reason and there is no higher level of discharge; the applicant was granted full relief in a prior ADRB. (2) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation and if the applicant desires to rejoin military service, a waiver for the applicant's service connected MDD is required. 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 AR20210002770 1