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, having served more than 19 years of creditable service, the process of the discharge requiring final determination by the Headquarters, Department of the Army, according to AR 635-200, paragraph 2-12c (2), never occurred. Therefore, the applicant is requesting to change the narrative reason for discharge to retirement, effective at the point the applicant would have reached 20 years of creditable service. 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 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 23 January 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 October 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received three driving under the influence (DUI) offenses on 13 February and 21 September 2004, and most recently 21 August 2007. Specific circumstances exist which the following offenses would warrant a punitive discharge for the same or closely related offenses under the Manual for Courts-Martial. The applicant was also convicted of obstructing an officer in Monroe County on 21 May 2007. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 28 November 2007 (5) Administrative Separation Board: On 28 November 2007, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 28 November 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 May 2003 / Indefinite b. Age at Enlistment / Education / GT Score: 41 / 2 years’ college / 111 c. Highest Grade Achieved / MOS / Total Service: E-6 / 13B30, Cannon Crewmember / 17 years, 7 months d. Prior Service / Characterizations: RA, 21 January 1985 – 22 January 1993 / HD (Break in Service) USAR, 4 May 1995 – 2 June 1998 / NA e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ARCOM, AAM-8, AGCM-4, NDSM-2, GWOTSM, NCOPDR-2, ASR, AFRM, OSR-2 g. Performance Ratings: July 2002 – June 2004 / Fully Capable July 2004 – 30 November 2006 / Fully Capable 1 December 2006 – 25 October 2007 / Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 20 May 1992, for violating a lawful general regulation by wrongfully exiting the establish alert on 9 May 1992. On 9 May 1992, wrongfully use reproachful words towards SSG P. On 9 May 1992, disorderly conduct, bringing discredit upon the armed forces. The punishment consisted of a reduction to E-4; extra duty and restriction for three days. Military Police Report, dated 13 February 2004, reflects the applicant was charged with: Service Member in Civil Custody (Off Post). General Officer Memorandum of Reprimand, dated 31 January 2005, on 7 February 2004 incident, the applicant was observed traveling at a high rate of speed by the Tomah, Wisconsin Police. After being pulled over by the Tomah police, a strong odor of alcohol was detected emanating from the applicant’s vehicle. The Officer noted the eyes appeared bloodshot and speech was slurred. The Officer then conducted a series of field sobriety tests, which the applicant failed. The applicant later provided a breath sample which registered a Breath Alcohol Content of .15, exceeding the .08 legal limit in the state of Wisconsin. General Officer Memorandum of Reprimand, dated (illegible), on the 13 March 2004 incident, a Lacrosse, Wisconsin Police observed the applicant’s vehicle weaving back and forth and crossing the centerline. A traffic stop was initiated and upon being pulled over by the Lacrosse Police, a strong odor of alcohol was detected emanating from the applicant’s person. The Officer then conducted a series of field sobriety tests, which the applicant failed. The applicant later provided a blood sample which registered a Blood Alcohol Concentration of .242, exceeding the·.08 legal limit in the state of Wisconsin. Military Police Report, dated 21 September 2004, reflects the applicant was apprehended for: Service member in Civilian Custody (Off Post). State of Wisconsin Circuit Court Branch II, Judgement of Conviction and Sentence of County jail/Fine forfeiture, dated 25 May 2007, reflects the applicant was found guilty of Resisting or Obstructing an Officer and sentenced to 30 days in jail and to pay court cost. Military Police Report, dated 8 November 2012, reflects the applicant was charged with: Service Member in Civil Custody (Off Post). Numerous Developmental Counseling Forms for various acts of misconduct. i. Lost Time / Mode of Return: 4 days (NIF, 29 June 2009 – 2 July 2009) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 30 October 2007, reflects the applicant was mentally responsible with a clear thinking process and had the mental capacity to understand and participate in the proceedings. The applicant was cleared for any administrative actions deemed appropriate by command. The applicant was diagnosed with Alcohol Dependence in partial remission. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Commander's Separation file; Orders C-12-732871; Orders D-17-790338A01; Excerpt from AR 635-200 2-12 C (2). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities’ last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember’s date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers’ Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Misconduct (Serious Offense),” and the separation code is “JKQ.” Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the process of the discharge requiring final determination by the Headquarters, Department of the Army, according to AR 635-200, paragraph 2-12c (2), never occurred. The Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. 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 Major Depression may mitigate the applicant’s basis of separation – three DUI offenses and civilian conviction for obstructing an officer. (2) Did the condition exist or experience occur during military service? Yes. The Board Medical Advisor found that the applicant’s Major Depression existed during the applicant’s service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant’s Major Depression does not mitigate the applicant’s offenses of DUI and obstructing an officer as DUI and obstructing an officer are not part of the sequela of symptoms associated with Major Depression. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board’s Medical Advisor opine, the Board determined that the applicant’s Major Depression does not outweigh the applicant’s medically unmitigated misconduct – three DUI charges and obstructing an officer due to the seriousness of the applicant’s misconduct and the frequency that the applicant made a conscious and deliberate decision to drive after using alcohol. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered the totality of the applicant’s service record and applicant provided evidence, and determined that the applicant’s narrative reason appropriately reflects AR 625-200, paragraph 14-12c, “serious misconduct” for the applicant’s offenses of three DUI offenses and civilian conviction for obstructing an officer. Therefore, a change to the applicant’s narrative reason is not warranted. (2) The applicant contends the process of the discharge requiring final determination by the Headquarters, Department of the Army, according to AR 635-200, paragraph 2-12c (2), never occurred. The Board determined this contention to lack merit, due to the regulation the applicant quoted referring to administrative separation board proceedings, which never occurred due to the applicant waiving that right under the condition the applicant received a GD, which was completed as requested. Furthermore, the applicant’s final DD214 reflects 17 years and 7 months’ total active duty service credit, which falls below the 18 years required for a mandatory board hearing as per AR635-200, paragraph 2-5d. DD214 documents often show more total service, as inactive service is often included as well; the applicant would need to produce a final DD214 that shows greater than 18 years of active service prior to initiation of elimination for the board to consider this contention. 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, the applicant’s Major Depression does not outweigh the applicant’s medically unmitigated misconduct – three DUI charges and obstructing an officer due to the seriousness of the applicant’s misconduct and the frequency that the applicant made a conscious and deliberate decision to drive after using alcohol. The Board also considered the applicant’s contentions of impropriety (coerced statement and hazing) and found that there was no evidence of arbitrary or capricious actions warranting 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 GD was proper and equitable as the applicant’s misconduct fell below that level of meritorious service warranted for an upgrade to HD. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 AR20210002825 1