1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is Honorable. The applicant, through counsel, requests a narrative reason change. The applicant seeks relief contending, in effect, on 3 May 2004, the applicant enlisted in the Army. While in the service, the applicant received various awards. In the summer of 2006, the applicant claims applicant began experiencing family issues and separated from the spouse. The applicant claims applicant witnessed a prevalence of adultery and crime amongst fellow Servicemembers, to induce fear and mistrust of the commander and Servicemembers. Because of these traumatic incidents, the applicant claims applicant began experiencing symptoms of depression and anxiety, and was diagnosed with Major Depressive Disorder and a sleeping disorder. The applicant claims mental health condition led to other performance-affecting symptoms such as insomnia and stress and the applicant did not have to proper resources to handle, which led to self-medication through alcohol. In December 2006, while dealing with the mental health conditions, the applicant claims applicant was arrested for Driving Under the Influence (DUI). Despite the Army's knowledge of the alcohol abuse, the applicant claims applicant did not receive alcohol screening or treatment as mandated by Army policies regarding the Army Substance Abuse Program (ASAP). In May 2007, the applicant was arrested for another DUI. The applicant claims command again failed to refer the applicant for alcohol intervention, despite explicit requirements to do so. The applicant claims applicant was forced to take the initiative to self-refer to ASAP, even when aware of separation processes taking place. The applicant claims DUIs were a direct result of the mental health disorder as well as the command's inaction and failure to uphold the command's responsibilities. The applicant was discharged on 23 July 2008. Since the discharge, the applicant claims applicant has taken steps to receive formal alcohol treatment and has been sober since 2010; excelled in college, graduating with a degree in communication studies, with a 3.5 GPA; held several internships, to include at the VA, and a job with the Social Security Administration since 2015; volunteering in the community; and, remarried and has five children. The applicant claims applicant's discharge was inequitable, in light of the mental health conditions, which serve as mitigation for the misconduct, the condition existed during service; the misconduct was a direct result of the mental health condition; the mental health condition outweighs the misconduct; the command effectively denied the applicant much-needed alcohol treatment, which was arbitrary and capricious; and the negative discharge does not reflect the post service activities. The applicant claims commanders are more fully informed today regarding the relationships between characterization of service and mental health conditions and may opt for a less prejudicial discharge to ensure the veterans retain certain benefits. The applicant further details the contentions in an allied self-authored statement provided with the application. In a records review conducted on 12 May 2022, and by a 5 - 0 vote, based on a previous Board upgrade to HD based on applicant's BH condition, and this Board's additional consideration of the applicant's length and quality of service, this Board determined the narrative reason for the applicant's separation is inequitable. Therefore, this Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Honorable b. Date of Discharge: 23 July 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 17 June 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received an event oriented counseling statement on 5 September 2007 for second offense of being arrested for driving under the influence. The applicant received a Memorandum of Reprimand on 12 May 2007 from Fort Hood Commander for driving an automobile while intoxicated. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 18 June 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 10 July 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 April 2006 / 5 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 4 years, 2 months, 21 days d. Prior Service / Characterizations: RA, 3 May 2004 - 6 April 2006 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, NDSM, GWOTSM, NCOPDR, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Texas Department of Public Safety Traffic Law Enforcement Division Offense Report, dated 14 December 2006, reflects the applicant was arrested for driving while intoxicated on 9 December 2006. Order Granting Community Supervision, dated (illegible), reflects the applicant was found guilty of DWI and sentenced to a fine of $750 and confinement for 92 days. The sentence to confinement was suspended and the applicant was placed on community supervision for 12 months. General Officer Memorandum of Reprimand, dated 12 May 2007, reflects the applicant was driving while intoxicated. After being stopped for reckless driving above the speed limit on 9 December 2006. A Field Sobriety Test was administered, which the applicant failed. The applicant was administered an intoxilyzer test, which registered a 0.134 breath alcohol content, above the legal limit of 0.08 as set forth in the Texas Penal Code section 49.04. The applicant provided a rebuttal statement. Arrest Report, dated 31 August 2007, reflects the applicant was arrested for Driving While Intoxicated Subsequent on 31 August 2007. General Officer Memorandum of Reprimand, dated 12 September 2007, reflects the applicant was driving while intoxicated. After being stopped by a Killeen Police Department Officer on 31 August 2007. The applicant refused to provide a blood specimen for the purpose of measuring the blood alcohol content. Army Substance Abuse Program (ASAP) Enrollment form, dated 5 and 26 September 2007, reflects the applicant was enrolled in the program by self-enrollment and had DWIs on 10 December and 31 August 2006. The document is marked "Self," as the type of enrollment, but is signed by the applicant's supervisor and the commander. 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 was mentally responsible and had the mental capacity to understand and participate in the proceedings. The evaluation did not indicate any diagnosis. Two Developmental Counseling Forms for DWIs and being notified of recommendation to be enrolled in ASAP. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: ASAP Outpatient Discharge Summary, dated 12 December 2007, reflects the applicant was admitted due to A/I (DUI) referral and was diagnosed with alcohol abuse with two DUIs in the past year. The applicant provided VA letter, dated 25 April 2013, reflecting the applicant was rated 100 percent service-connected disability for Major Depressive Disorder and Alcohol Dependence, in sustained full; 50 percent for Remission (formerly depression); and 10 percent for Sleep Apnea. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; legal brief; self-authored statement; Developmental Counseling Form; ASAP Enrollment form; Department of Veterans Affairs letter; VA/DoD Sleep Disorders Center of Central Texas; three third party statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends taking steps to receive formal alcohol treatment and has been sober since 2010; excelled in college, graduating with a degree in communication studies, with a 3.5 GPA; held several internships, to include at the VA, and a job with the Social Security Administration since 2015; has been involved in the community; and, remarried and has five children. 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 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. (4) 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. (5) 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. (6) 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 "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 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 a change in narrative reason. 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 to Secretarial Authority. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an honorable 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 Major Depressive Disorder, other mental health issues, and family issues affected behavior which ultimately led to the discharge. There is no evidence in the AMHRR the applicant ever sought assistance regarding the family issues before committing the misconduct, which led to the separation action under review. The applicant provided documents indicating a VA rating of 100 percent service-connected disability for Major Depressive Disorder, Alcohol Dependence, in sustained full; 50 percent for Remission (formerly depression); and 10 percent for sleep apnea. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 7 January 2008, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends being self-enrolled in ASAP because the command failed to enroll the applicant as required by policy and/or regulation. The Army Substance Abuse Program (ASAP) Enrollment form, dated 5 and 26 September 2007, reflects self-enrollment. A Developmental Counseling Form, dated 5 September 2007, reflects the applicant was informed of a pending command referral to ASAP based on an alcohol related incident. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The applicant contends commanders today are more informed and may opt for a less prejudicial discharge to ensure the veteran retain certain benefits. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends good service. The third party statements provided with the application speak highly of the applicant. The Board considered the service accomplishments and the quality of service. The applicant contends being sober since 2010; attaining a degree in communication studies, with a 3.5 GPA; maintaining employment; being involved in the community; and, married and has five children. The third party statement provided with the application recognizes the applicant's good conduct after leaving the Army. 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, after applying liberal consideration found applicant's Major Depressive Disorder (MDD) mitigated applicant's original basis for separation that warranted a previous Board's discharge characterization upgrade to HD, and now warrants reconsideration of applicant's discharge narrative. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor, after applying liberal consideration found the applicant had MDD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor, after applying liberal consideration, found applicant's MDD mitigated applicant's original basis for separation that warranted a previous Board's discharge characterization upgrade to HD, and now warrants reconsideration of applicant's discharge narrative. (4) Does the condition or experience outweigh the discharge? Yes. The Board, after applying liberal consideration, concurred with the Board's Medical Advisor, that the MDD outweighed the mitigated applicant's original basis for separation that warranted a previous Board's discharge characterization upgrade to HD, and now warrants reconsideration of applicant's discharge narrative, but this Board considered this narrative change warranted because the previous Board did not equitably change the narrative reason along with the prior discharge characterization upgrade. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed to Secretarial Authority. The Board considered this contention but determined the narrative reason should change to Misconduct (Minor Infractions) after considering applicant's mitigated basis for separation, but does not warrant a change to Secretarial Authority because the applicant was involuntarily separated for misconduct, and the applicant's MDD does not fully excuse the entirety of the applicant's responsibility for the misconduct. Therefore, the Board determined that Secretarial Authority, which is exercised sparingly when no other authority is available, is not warranted because the Misconduct (Minor Infractions) narrative applies in this case. Thus, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (2) The applicant contends Major Depressive Disorder, other mental health issues, and family issues affected behavior which ultimately led to the discharge. The Board liberally considered this contention but determined the narrative reason change was warranted because the current discharge narrative is inequitable after the former Board upgraded the discharge characterization but did not change the discharge narrative to reflect that applicant's BH conditions had mitigated the applicant's basis for separation, therefore warranting a discharge narrative change from Serious Misconduct to Misconduct (Minor Infractions). (3) The applicant contends being self-enrolled in ASAP because the command failed to enroll the applicant as required by policy and/or regulation. The Board considered this contention during proceedings, but ultimately did not address the contention due to finding a narrative reason change was warranted after determining the original narrative was inequitable. (4) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. c. The Board determined that applicant's narrative reason was inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635- 200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's narrative reason to separation authority of AR 635-200, paragraph 14-12a, Misconduct (Minor Infractions), and the separation code to JKN because applicant's original narrative reason was inequitable. (2) 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: No Change 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 AR20210002976 1