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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, in June 2012 the applicant was transferred from D Company, 2nd Attack Reconnaissance Battalion, 159th Aviation Regiment, to C Company. The applicant was hand-selected by the command of C Company to be assigned to the company because the applicant demonstrated great skill and competency in the applicant's field as a crew chief. After a few weeks of working in the C Company, the applicant began to butt heads with Sergeant First Class (SFC) J. M. and SFC M. F. The noncommissioned officers (NCOs) told the applicant they would have the applicant demoted and chaptered out of the Army. SFC M. F. even said SFC M. F. would shoot the applicant in the back if SFC M. F. had the chance. The applicant's superiors, peers, and subordinates would attest the applicant was a top-notch Soldier and crew chief. The two E-7s had formed a good ole boys club, and the applicant was not in the club. The applicant requested on several occasions to be removed from C Company to any other company, but it was denied because the applicant was too valuable to the company. The applicant contacted the Inspector General just to have the applicant's call repeated back to the applicant by the two NCOs, while the NCOs laughed in the applicant's face. This was extremely humiliating and traumatizing and the applicant is still having trust issues with those appointed over the applicant. The legal department for the applicant's unit told the applicant the reasoning behind the company level Article 15s was unjust. The applicant was discharged for a pattern of misconduct but received the Army Good Conduct Medal at the applicant's third year of service. Two days after the applicant was issued orders to Fort Carson, CO, and to be finally free of the NCOs, the NCOs filed for the applicant's separation from the Army, as the applicant was no longer useful to the NCOs. The applicant did not receive the orders to Fort Carson until they read the separation paperwork. The applicant worked very hard and served in Operation Enduring Freedom during almost four years of service. The applicant never quit trying to be the best at the job, despite the horrible situation the applicant was stuck in. These NCOs effectively threw the applicant's life off course, and the applicant and the applicant's family have suffered a great deal over the years. The applicant wants fix it but needs help to further the education. The applicant believes the applicant deserves this. The applicant believes SFC J. M. and SFC M. F. should be investigated and prosecuted in some way because the applicant knows the applicant is not the only Soldier the NCOs have done this to. The NCOs abused their position and rank and do not deserve the right to be called leaders. In a records review conducted on 12 July 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. Accordingly, 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 May 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 2 April 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant on diverse occasions failed to report to the appointed place of duty. The applicant had been derelict in the performance of duties. The applicant assaulted another Soldier. The applicant had been drunk and disorderly. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 8 April 2014, the applicant requested consulting counsel, but was seen by a Trial Defense Services' Paralegal. The record is void of a waiver to consult with legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 June 2010 / 6 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 15R10, AH-64 Attack Helicopter Repairman / 3 years, 10 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (9 May 2012 - 6 March 2013) f. Awards and Decorations: ACM-CS, ARCOM, AGCM, NDSM, OSR-2, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Summarized Article 15, dated 9 December 2012, for, on two occasions, at FOB Sarana Afghanistan, failing to go at the time prescribed to the appointed place of duty, to wit: A Company area of Operation at 0200 and A Company area of operation at 0100 (11 and 19 November 2012). The punishment consisted of extra duty and restriction for 14 days. The DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ), was not signed by the applicant. Company Grade Article 15, dated 7 May 2013, for, at FOB Sharana, Afghanistan, being derelict in the performance of those duties in which the applicant negligently failed to conduct a proper Preventative Maintenance Daily Inspection and failed to inform the supervisor the aircraft was unairworthy due to an oil leak (23 January 2013). The punishment consisted of reduction to E-3. Military Police Report, dated 15 September 2013, reflects the applicant was apprehended for: Simple Assault under Article 128, UCMJ (on post) and Drunk and Disorderly Conduct under Article 134, UCMJ (on post) when at Longbow Lounge, Storck Barracks, Illesheim, Germany, the applicant and SGT E. F. were involved in a verbal altercation which turned physical, when SGT E. F. placed the applicant in a headlock causing the applicant to fall to the ground. SGT E. F. escorted the applicant out of the building, at which time the applicant attempted to strike SGT E. F. with a fist but missed. SGT E. F. then struck the applicant with the left and right fists. CPT S., SJA, opined there was probable cause to believe the applicant committed the offenses. Company Grade Article 15, dated 4 December 2013, for assaulting Sergeant (SGT) E. F. by swinging in SGT E. F.'s general direction (14 September 2013) and being drunk and disorderly (14 September 2013). The punishment consisted of extra duty and restriction for 14 days. Report of Mental Status Evaluation, dated 13 January 2014, 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 applicant tested negative for PTSD and positive for mild TBI. The applicant met the criteria for AR 40-501. The applicant was pending a follow-up appointment with the mTBI clinic. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 31 January 2013 [sic], the examining medical physician noted in the comments section: Loss of Consciousness for 45 minutes after fight August 2013, seen by TBI clinic. Chronic Insomnia, medicine prescribed by TBI clinic; enrolled in ASAP. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Three third-party character statements; Army Good Conduct Medal Orders; Reassignment Orders to Fort Carson, CO; Notification of Separation (different from notification in separation packet); Verification of Military Experience and Training. 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. (7) Chapter 15 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 memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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 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 harassment and discrimination by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. 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 third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's good military service. The Board considered the service accomplishments and the quality of service. 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. 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: AHLTA does not contain any in-service BH diagnoses. He is diagnosed with Brain Injury Traumatic and Concussion. JLV does not contain any post-service BH diagnoses. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found AHLTA does not contain any in-service BH diagnoses. He is diagnosed with Brain Injury Traumatic and Concussion. JLV does not contain any post-service BH diagnoses. (3) Does the condition or experience excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis for his misconduct. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical condition of TBI outweighed the basis for applicant's separation - FTR, dereliction of duty, assault of another Soldier and drunk and disorderly conduct. b. Response to Contention(s): (1) The applicant contends harassment and discrimination by members of the chain of command. The Board considered this contention and determined the applicant did not provide supporting documentation to provide merit to the claim. Ultimately, the Board decided that the assertion alone did not outweigh the basis of separation due to the severity of the offenses and found no evidence of the Command acting arbitrarily or capriciously. In this case, the Board determined the discharge was proper and equitable. (2) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. (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. c. The Board determined the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the minor nature of the offenses. Accordingly, 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. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable. The Board voted to grant relief based upon applicant's length and quality of service, to include combat service, and the minor nature of the offenses (including the assault in which the applicant swung at put did not contact the other individual in a mutual physical altercation). 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 AR20210002772 1