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 requests a narrative reason change and a reentry eligibility (RE) code change. The applicant through counsel, seeks relief contending, in effect, the applicant was diagnosed with service-connected PTSD and requests expedited review and the benefit of presumption of a PTSD-connection to any alleged misconduct. The applicant further requests the investigation and Article 15 punishment be completely removed or sealed from the record as it was imposed in error, as well as changing terminal rank back to SGT because the reduction to SPC was improper and an abuse of discretion by the command. The applicant requests a change to the narrative for separation, the separation authority and the separation code based on an erroneously imposed Article 15 that is reflected in the applicant's official record. The applicant states that the applicant is proficient at work and a combat veteran. In a records review conducted on 7 April 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 (Minor Infractions) / AR 635-200, Chapter 14-12a / JKA / RE-3 / Honorable b. Date of Discharge: 25 February 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 February 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant has been counseled on numerous occasions about misconduct and has been punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for misconduct. The acts of misconduct range from failing to be at the appointed place of duty at the prescribed time on four occasions; disrespecting a Superior Commissioned Officer; dereliction of duty and making a false official statement on two occasions. The commander states it is in the best interest of the U.S. Army the applicant be separated from the Army. The applicant's pattern of misconduct is not in keeping with the high standards it takes to be a Soldier in the U.S. Army. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 February 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 February 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 December 2005 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-5 / 27D10, Paralegal Specialist / 4 years, 9 months, 19 days d. Prior Service / Characterizations: RA, 7 May 2003 - 30 November 2005 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (28 September 2006 - 25 December 2007) f. Awards and Decorations: ARCOM-2, AAM, AGCM, NDSM, GWOTSM, KDSM, ICM, ASR, OSR-2, CAB g. Performance Ratings: 1 January 2006 - 31 December 2006 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Commander's Inquiry, dated 26 November 2007, shows the investigating officer found, in pertinent part, the applicant and SGT R. had engaged in an inappropriate relationship and the applicant attempted to negatively influence the investigation. FG Article 15, dated 4 December 2007, for failing to go at the time prescribed at the appointed place on duty on four separated occasions between 5 April and 20 July 2007; disrespectful in language toward MSG V., on 8 June 2007; was derelict in the performance of duties on 25 October 2007; making a false statement to Major F., between 22 and 27 October 2007; wrongfully endeavor to influence the testimony of SPC T., and wrongfully solicit to influence the testimony of SPC L. between 22 and 29 October 2007. The punishment consisted of a reduction to E-4; forfeiture of $1,039 pay; and extra duty for 45 days (suspended). Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a VA Rating decision, dated 17 August 2016, reflects the applicant was rated 30 percent for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Attorney brief and enclosures; Applicant self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has a Bachelor of Science in Legal studies and a Certificate of Completion of Paralegal Assistance. 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 14-12a, addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 "JKN" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12a, Misconduct (Minor Infractions). 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 a narrative reason change and a reentry eligibility (RE) code change. 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 to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12a, AR 635-200 with a honorable discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Minor Infractions)," and the separation code is "JKN." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly 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 SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12a, is "JKN." The applicant contends PTSD was service-connected and was diagnosed by the VA. The applicant provided a VA Rating decision, dated 17 August 2016, reflecting the applicant was rated at 30 percent for PTSD. The AMHRR is void of a mental status evaluation. The applicant contends the Article 15 should be removed and rank restored to SGT. The applicant's requested changes do 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. The applicant contends the RE code should be changed to reflect qualification for reentry. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. 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. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends having a Bachelor of Science in Legal studies and a Certificate of Completion of Paralegal Assistance. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization 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 found was diagnosed with PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant PTSD existed during service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, found applicant's PTSD partially mitigated applicant's original basis for separation that warranted a previous Board's discharge characterization upgrade to HD, but determined that no further relief is warranted. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the Board's Medical Advisor, and determined that the PTSD outweighed the applicants partially mitigated original basis for separation that warranted the previous Board's discharge characterization upgrade to HD. This Board determined that the applicant's discharge narrative/SPD and RE code is not outweighed by the applicant's BH condition and the discharge narrative/SPD and RE code does not warrant any further upgrade. b. Response to Contention(s): (1) The applicant contends the narrative reason/SPD code for the discharge needs to be changed. The Board determined that this contention and determined that the narrative reason was valid, and no change is warranted. (2) The applicant contends PTSD was service connected. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board, after applying liberal consideration, determined that the applicant's PTSD partially mitigated the basis for applicant's separation. (3) The applicant contends the Article 15 should be removed and rank restored to SGT. The Board determined that the applicant's requested changes do 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. (4) The applicant contends the RE code should be changed to reflect qualification for reentry. The Board considered this contention and voted to maintain the RE-code as a RE-3, which is a waiverable code. 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. (5) The applicant contends good service, including a combat tour. The Board considered this contention and determined that the applicant's discharge as inequitable based on the applicant's length and quality of service, to include combat service, and post service accomplishments as weighed against the partial medical mitigation of the basis for separation. 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 characterization of service due to it already being Honorable. (2) The Board voted not to change the narrative reason for discharge, as the current narrative reason and accompanying SPD code are proper and equitable. The medical mitigation does not warrant a change to Secretarial Authority because the applicant was involuntarily separated for misconduct, and the applicant's PTSD and 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. (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: 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 AR20210003102 1