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, applicant was deployed in 2002 to 2003 to Kuwait, Baghdad, and Fallujah, to fight in the war of Iraqi Freedom. Soon after returning from deployment, the applicant relocated from Fort Stewart, GA, to Fort Carson, CO. The applicant had trouble adapting to normal life and applicant was arrested for the first time in applicant's life for vandalizing a person's vehicle applicant did not know. The applicant was ashamed of what applicant had done and because of this incident, the applicant was being processed for separation, but to applicant's understanding applicant could not be discharged for applicant's first offense. While going through the discharge process, the applicant's platoon sergeant released applicant from PT formation to clean applicant's battle gear to turn in. While the applicant was in the barracks applicant's first sergeant (1SG) walked in and heard the applicant in the room cleaning applicant's battle gear. The first sergeant knocked on the door and the applicant answered. The 1SG asked what the applicant was doing and the 1SG was told the applicant was following orders by going there and cleaning applicant's battle gear. The 1SG then told the applicant he smelled alcohol on applicant's breath. The applicant told the 1SG applicant had gone out with some of applicant's battle buddies and they returned late and this was the reason for the alcohol on applicant's breath, not because he was up 5 o'clock in the morning drinking. The applicant told the 1SG he could ask applicant's battle buddies to prove applicant was telling the truth, but the 1SG did not want to hear it and proceeded to search the room. There was no alcohol found in the room, but the 1SG still wrote the applicant up as being drunk on duty and drinking during duty. The 1SG knew he could not discharge the applicant on applicant's first offense and used the offense of drunk on duty to discharge the applicant from the service. The applicant did not fight it because applicant knew as long as the 1SG was there applicant would always be singled out. The applicant laid low and removed them self from the situation. The applicant's wife has now noticed applicant had been dealing with issues over the years and needed professional help. The applicant had been consulting with a VA counselor and believes it will be determined applicant had been dealing with deep depression and PTSD. The applicant had been to war, returned home, and was arrested for the first time in applicant's life within a year of returning from Iraq. The applicant still questions them self about why applicant made the huge mistake of being arrested. The applicant was not thinking clearly. The applicant states applicant was never offered or received counseling while on active duty; and, was just discharged. The applicant is a Sergeant at the Florida Department of Corrections where applicant has been working for almost 14 years. The applicant is not a trouble maker and is having a hard time adjusting to civilian life, but applicant is receiving the help applicant needs. The applicant asks for a fair decision because it would mean the world to be discharged honorably for serving applicant's country. The applicant believes it is a personal goal applicant needs to achieve because a part of applicant's life is not complete knowing applicant's military career did not end as anticipated. An upgrade would give applicant the opportunity to hold applicant's head higher. In a records review conducted on 22 February 2022, and by a 3-2 vote, the Board determined that the discharge was too harsh based on the applicant's length of service, to include combat service, and as a result it is inequitable. 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: Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 24 November 2004 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2004 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was intoxicated while on duty and charged with criminal civil conviction for criminal mischief. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 19 October 2004 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 October 2004 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 November 2002 / 3 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 87 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92F10, Petroleum Supply Specialist / 4 years, 9 months d. Prior Service / Characterizations: RA, 25 February 2000 - 22 November 2002 / HD e. Overseas Service / Combat Service: SWA / Iraq (23 September 2003 - 11 August 2004) f. Awards and Decorations: PUC, AGCM, NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Mental Status Evaluation, dated 2 September 2004, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible; able to distinguish right from wrong and adhere to the right; and had the mental capacity to understand and participate in the proceedings. Fort Carson Military Police Intoxilyzer - Alcohol Analyzer Test, dated 1 October 2004, reflects the test was administered on the applicant, which resulted in a breath alcohol content as 0.91. Developmental Counseling Form, dated 1 October 2004, for being found in another Soldier's room during the duty day and smelling of alcohol. Register of Action (District Court, El Paso County, CO), dated 14 October 2004, reflects the applicant was arrested on 11 August 2004, for three counts of Trespass 1 - Auto - with intent to commit crime and one count of Criminal Mischief - $100 - $500. The three counts of Trespassing were dismissed by the District Attorney. On 12 October 2004, the applicant plead guilty to Criminal Mischief and was sentenced to unsupervised probation for 1 year; community service for 40 hours; $155 in funds/court costs; and, restitution of $3292. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical Examination, dated 4 August 2004, the examining medical examiner noted in the summary of defects and diagnoses section: Depression. Report of Medical History, dated 26 August 2004, the examining medical examiner noted in the comments section: Depression for one year and a half; has not been evaluated. The applicant provided a letter from Mr. C.S., Certified Peer Support Specialist, Department of Veterans Affairs Medical Center, dated 27 December 2018, reflecting the applicant was referred by a Mental Health LCSW due to applicant's increased anxiety, anger, and multiple road rage incidents and request to speak to a combat veteran. Mr. C.S. described what was observed regarding the applicant; the applicant's issues caused by applicant's deployment, to include self- medicating through alcohol; and, applicant's accomplishments. Mr. C.S. indicated the applicant's condition was chronic and severe and resulted in total social impairment, due to such symptoms as gross impairment in thought processes or communication and grossly inappropriate behavior. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DD Form 214; three third-party statements; VA Certified Peer Support Specialist letter. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been working for the Florida Department of Corrections for almost 14 years and is a Sergeant. 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. 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 waivable and nonwaivable 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 waivable. 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 suffering from PTSD and depression, which affected applicant's behavior and led to applicant's discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The AMHRR reflects the applicant underwent a medical examination on 4 August 2004 and the medical examiner noted in the summary of defects and diagnoses section: Depression. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 2 September 2004, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible; able to distinguish right from wrong and adhere to the right; 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 provided a letter from a VA Certified Peer Support Specialist, which described the applicant's attempt to self-medicate with alcohol upon applicant's return from deployment and the applicant's social impairment issues. The applicant contends applicant's 1SG used a charge of drunk on duty against applicant to discharge applicant from the service and applicant did not fight it because the 1SG would have singled applicant out. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, to include a combat tour. The applicant contends being a Sergeant at the Florida Department of Corrections where applicant has been employed for almost 14 years. The third party statements provided with the application speak highly of the applicant. They recognize 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, a voting member, reviewed DoD and VA medical records, applicant submissions and third party statements, and found the applicant was diagnosed with PTSD and Major Depressive Disorder, which, after applying liberal consideration could potentially mitigate the intoxication while on duty and vandalism which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant had PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor, after reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, opined that applicant's PTSD does not mitigate all of applicant's misconduct as vandalism is not part of the sequela of symptoms/behaviors associated with PTSD, and therefore is not mitigated by applicant's PTSD. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor, after applying liberal consideration, determined that the applicant's PTSD did not outweigh the vandalism that was a basis of separation. b. Response to Contention(s): (1) The applicant contends suffering from PTSD and depression, which affected applicant's behavior and led to applicant's discharge. The Board considered this contention during proceedings, and found the applicant's PTSD partially mitigated the basis for separation, but did not outweigh the unmitigated basis. However, the Board majority voted in favor of an upgrade based on the applicant's discharge characterization for the unmitigated basis for separation being too harsh when considering applicant's overall quality of military service, including combat service. (2) The applicant contends applicant's 1SG used a charge of drunk on duty against applicant to discharge applicant from the service and applicant did not fight it because the 1SG would have singled applicant out. The Board considered this contention non-persuasive during its deliberations. (3) The applicant contends good service, to include a combat tour. The Board majority determined that this contention was valid and voted in favor of an upgrade based on the applicant's characterization of service due to applicant's separation being too harsh when considering applicant's overall quality of military service, including combat service. (4) The applicant contends being a Sergeant for the Florida Department of Corrections where he has been employed for almost 14 years. The Board considered this contention non- persuasive during its proceedings, but the majority voted in favor an upgrade being granted based on the applicant's discharge characterization for the unmitigated basis for separation being too harsh when considering applicant's overall quality of service, including combat service. c. The Board majority determined that the discharge was too harsh based on the applicant's discharge characterization for the non-mitigated basis for separation when considering applicant's quality of military service, to include combat service, and as a result the characterization is inequitable. Accordingly, the Board majority 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 majority voted to change the applicant's characterization of service to Honorable because the applicant's discharge for the unmitigated basis for separation was too harsh based on the applicant's quality of service, to include combat service. Thus the prior characterization is no longer appropriate. (2) The Board majority 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 / Separation Order: 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 AR20210003148 8