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 uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the Secretary of the Army has an obligation to correct or remove injustices from any military record of their respective service and fully erase such error or compensate such injustice (citing 32 C.F.R. section 581.3 and various court cases). There is a procedural defect in this case. The request for administrative separation could be both command-initiated and initiated by the service-member. In this case, there was a hasty command-initiated request for separation. Prior to entering active duty, the applicant informed the recruiter applicant's father was admitted into the hospital, but the recruiter told the applicant they were under contract and was to report to basic combat training (BCT). After the applicant reported to BCT, the applicant informed the Drill Sergeant of the situation and then the commander. The commander, made some disparaging comments to the applicant which frightened the applicant. The command had taken the applicant to be seen by Behavioral Health. The command informed the applicant that due to applicant's mental health issue and the applicant was leaving the Army. Out of fear, the applicant signed whatever they gave the applicant. The applicant was experiencing difficulties mentally and emotionally, but the command did not take the time to find a way to assist the applicant. During a command-initiated discharge request, under Army Regulation 635-200, Chapter 10, paragraph 10-4(b), consideration should be given to the Soldier's potential for rehabilitation, and his/her entire record should be reviewed before taking action. The commander must provide the member reasonable time to overcome deficiencies. In this case there was a rush to judgment, the problem could not be fixed. The command should have evaluated the applicant as to whether there was a long-term problem or whether there was an immediate fix. Although the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate applicant's elimination. The Instruction also allows for the Servicemember to be able to "fix" the problem. Applicant was not allowed these opportunities. The service-member was never offered or provided with rehabilitation. If the applicant was offered such, due to the fact English is applicant's second language, applicant did not fully understand what was happening. The command in this case did not have the proper authority to administratively separate the applicant. Finally, the Entry Level Separation does not serve a further purpose. The events that took place are no longer relevant to the applicant's life and has lived since in as responsible a manner as the applicant could. There is no valid equitable purpose in leaving the ELS in place. The applicant requests that the ELS be upgraded in order to serve in the Nebraska National Guard and not be a burden on applicant's new country and be shown equality and justice in order to have a fair future and peace of mind. The applicant served Honorably on Active Duty. The Entry Level Separation no longer serves a purpose. The applicant further details the contentions in an allied self-authored statement provided with the application. In a records review conducted on 1 February 2022, and by a 3-2 vote, the Board denied the request upon finding the characterization and reason for discharge was both proper and equitable. However, the Board determined an upgrade of the reentry code to RE-3 is inappropriate. 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: Entry Level Performance and Conduct / AR 635-200, Chapter 11 / JGA / RE-3 / Uncharacterized b. Date of Discharge: 10 February 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 27 December 2016 / 6 years b. Age at Enlistment / Education / GT Score: 28 / Bachelor's Degree / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 1 month, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: The applicant's AMHRR reflects award of the NDSM, however, the award is not reflected on the DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature, indicates the applicant was discharged under the provisions of AR 635-200, Chapter 11, by reason of Entry Level Performance and Conduct, with a characterization of service of Uncharacterized. Headquarters, U.S. Army Training Center, Fort Jackson, SC, Orders Number 038-1331, dated 7 February 2017, reflect the applicant was reassigned to the Army Transition Point for discharge with a discharge date of 10 February 2017. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states applicant now lives as stable and productive a life as possible. The applicant has purchased property in Michigan and runs a veterans' home for veterans which have become homeless due to bankruptcy. 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) Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. (5) Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS). (6) Paragraph 11-3a(2) stipulates the policy applies to Soldiers who are in entry-level status, undergoing IET, and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous AD or IADT or no more than 90 days of Phase II under a split or alternate training option. (See the glossary for precise definition of entry-level status.) (7) Paragraph 11-8, stipulates service will be described as uncharacterized under the provisions of this chapter. (8) Glossary defines entry-level status for RA Soldiers is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 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 "JGA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 11, entry level performance and conduct. 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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. A general discharge (GD) under honorable conditions is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 11, by reason of Entry Level Performance and Conduct, with a characterization of service of Uncharacterized. The applicant contends separation under Entry Level Status (ELS) was not appropriate and should have received an honorable discharge. Army Regulation 635-200 states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service. Based on the time in service, the applicant was in an ELS status and should have received an uncharacterized discharge. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 11, AR 635-200, with an uncharacterized discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Entry Level Performance and Conduct," and the separation code is "JGA." 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 applicant suffered from mental and emotional issues due to family matters, which affected applicant's behavior and ultimately led to applicant's discharge. The AMHRR contains no documentation of a mental health issue. The applicant did not submit any evidence to support the contention of a mental health issue or family issue. The AMHRR is void of a mental status evaluation. The applicant contends applicant received no assistance from the command with applicant's issues. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends applicant received no rehabilitation by the command. Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the separation authority may waive the rehabilitative requirements in circumstances where common sense and sound judgment indicate such a transfer will serve no useful purpose or produce a quality Soldier. The applicant contends good service. The applicant contends that applicant purchased property in Michigan and runs a veterans' home for veterans which have become homeless due to bankruptcy. 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. The applicant contends applicant's RE Code should be changed to RE Code 1. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, 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. 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? No. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records, and applicant's contentions and found no BH diagnosis or statement that could excuse or mitigate the applicant's failure to meet entry level performance and conduct requirements. (2) Did the condition exist or experience occur during military service? N/A.. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. (4) Does the condition or experience outweigh the discharge? N/A. b. Response to Contention(s): (1) The applicant contends separation under Entry Level Status (ELS) was not appropriate and should have received an honorable discharge. The Board determined that UNC is the proper characterization of service as the applicant's service was not long enough to be properly assessed and was appropriately discharged with an uncharacterized discharge for failure to meet entry level performance and conduct requirements during the applicant's ELS. A general discharge (GD) under honorable conditions is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The uncharacterized description of service accurately reflects the applicant's overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It means the Soldier has not been in the Army long enough for a character of service to be rated as honorable or otherwise. (2) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention during proceedings, finding insufficient evidence that the narrative reason for discharge was improper or inequitable. (3) The applicant contends applicant suffered from mental and emotional issues due to family matters, which affected the applicant's behavior and ultimately led to applicant's discharge. The Board concurred with its Medical Advisor, however, the Board determined that the applicant's mental and emotional issues due to family are not mitigating BH diagnoses and did not outweigh the basis of separation. (4) The applicant contends applicant received no assistance from the command with applicant's issues. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with command disputes. There is no evidence in the official records nor provided by the applicant that such assistance was withheld by applicant's command and therefore there was no arbritary or capricious action regarding command's removal of applicant for failure to meet entry level performance and conduct requirements during the applicant's ELS. (5) The applicant contends applicant received no rehabilitation by the command. The Board considered this contention and determined that applicant's command appropriately removed applicant for failure to meet entry level performance and conduct requirements during the applicant's ELS . (6) The applicant contends good service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. However, the Board determined that UNC is the proper characterization of service as the applicant's service was not long enough to be properly assessed. The uncharacterized description of service accurately reflects the applicant's overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It means the Soldier has not been in the Army long enough for a character of service to be rated as honorable or otherwise. (7) The applicant contends post service accomplishments of purchasing property in Michigan and running a veterans' home for veterans which have become homeless due to bankruptcy. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board determined that the discharge reason and characterization is proper and equitable. (8) The applicant contends applicant's RE Code should be changed to RE Code 1. The Board considered this contention and voted not to change the RE-code. c. The majority of the Board determined the characterization and reason for discharge are both proper and equitable and an upgrade of the reentry code to RE-2 is appropriate. 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 there were no mitigating BH or other potential factors for the Board to consider, as the applicant was discharged for Entry Level Performance and Conduct below standard, and therefore, Uncharacterized is proper and equitable. 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. (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 Board voted to change the RE code to RE-2. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: No Change c. Change Reason / SPD code to: No Change d. Change RE Code to: RE-2 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 AR20210003249 3