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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant through counsel, seeks relief contending, in effect, there is a procedural defect in this case. The request for administrative separation can be both command-initiated and initiated by the service-member. In this case, there was a hasty command initiated request for separation. The applicant was experiencing difficulties mentally and emotionally, but the command did not find out if there was any way which they could have helped him. During a command-initiated discharge request, under Chapter 10, Army Regulation 635-200: per reference 10-4 (b), consideration should be given to the Solder'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 which there was a problem which could not be fixed. The command should have evaluated the applicant as to whether he had 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 his elimination. The instruction also allows for the service member to be able to "fix" the problem. The applicant was not allowed these opportunities. The service member was never offered or provided with rehabilitation. The command in this case did not have the proper authority to administratively separate the applicant. He was treated disparately. He was treated much harsher than the other Soldier's in his unit and was not allowed to be rehabilitated. The applicant has been diagnosed with behavioral health problems which should be considered for this application. In addition, since the time of his elimination there have been several changes to the discharge upgrade law. The Under Secretary of Defense issued a memo, which expanded protections for veterans whose adverse discharges were a result of the "invisible wounds" resulting from PTSD, sexual trauma or other mental health conditions. The Kurta Memo is very detailed and provides very useful guidance to support Veterans' discharge upgrade applications. Now the Wilkie Memo, issued by then Under Secretary of Defense, issued guidance to Military Review Boards Regarding Equity, Injustice, or Clemency Determinations. In the memo, Secretary Wilkie noted "increasing attention is being paid to pardons for criminal convictions and the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions." He also noted while many states have developed veterans' courts to consider special circumstances associated with military service, states do not have authority to correct military discharges or military records. "The Boards have an interest in doing what is right-for both the Veteran and the Service-to ensure fundamental fairness. Our Veterans deserve fair reviews of their cases." The Wilkie Memo helps the Boards and Veterans by providing guidance and standards which authorize Boards to grant relief in order to ensure fundamental fairness. Never ever give up. There is always hope. Finally, the general (under honorable conditions), discharge does not serve a further purpose. The events which took place are no longer relevant to applicant's life and he has lived since in as responsible a manner as he could. There is no valid equitable purpose in leaving the discharge in place. In a records review conducted on 27 January 2022, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's post-service accomplishments, the circumstances surrounding the discharge (OBH diagnosis) and relatively minor offenses. Therefore, 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: Pattern of Misconduct / AR 635-200, Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 September 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 13 August 2018 (2) Basis for Separation: The applicant was informed of the following reasons: He was derelict in the performance of his duties on or about 14 February 2018, by failing to secure a spare M240 barrel; failed to report to his appointed place of duty on or about 24 April 2018; failed to report to his appointed place of duty on or about 24 April 2018; through negligence discharged an M240 on or about 11 April 2018; failed to report to his appointed place of duty on or about 12 June 2018, twice; and on or about 16 May 2018, failed to adhere to the grooming standard by failing to maintain a cleanly shaven face. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 15 August 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 August 2017 / 4 years, 21 weeks b. Age at Enlistment / Education / GT Score: 32 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 42A10, Human Resources / 1 year, 2 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 12 March 2018, for being derelict in the performance of his duties by negligently failed to keep his M240B Machine Gun Spare Barrel secured on or about 14 February 2018. The punishment consisted of a forfeiture of $450; and, extra duty and restriction for 14 days. FG Article 15, dated 11 June 2018, for failing to go at the time prescribed to his appointed place of duty on or about 24 April 2018 and on or about 25 April 2018; and, through negligence, discharged a M240, while pulling security on guard duty on or about 11 April 2018. The punishment consisted of a reduction to E-1; forfeiture of $819 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Record of Supplementary Action Under Article 15, UCMJ, dated 13 June 2018, reflects the suspended portion of the punishment imposed on 12 June 2018, was vacated because the applicant failed to go at the time prescribed to his appointed place of duty on or about 12 June 2018. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 26 June 2018, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Phase of life problem. The applicant provided a copy of his VA disability rating decision, dated 5 April 2019, which reflect the applicant was rated 30 percent disability for: Persistent depressive disorder with anxious distress. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-Authored statement; legal brief; 11 third party statements; criminal record check; VA rating decision with treatment records; Pennsylvania Child Abuse History Certification. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he is enrolled in a community college pursing a degree in Accounting and has two jobs as a bookkeeper and as a data entry clerk. He also volunteers in his community. He states he has a clean background and has never been arrested. 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 waiverable and nonwaiverable 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: 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, through counsel, requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." 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 14-12b, is "JKA." The applicant contends harassment and discrimination by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the contended harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command to support a discrimination contention. The applicant contends he was diagnosed with Persistent Depressive Disorder with anxious distress by the VA. The applicant provided his VA disability rating decision, dated 5 April 2019 which reflects he was rated 30 percent disability for Persistent Depressive Disorder with anxious distress. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 26 June 2018, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE reflects the applicant was diagnosed with: Phase of life problem. The MSE was considered by the separation authority. The applicant contends his command did not afford him the opportunity for rehabilitation. 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 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 601-201, 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 he has obtained employment and volunteers in his community. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct after leaving the Army. There are also witness statements which reflect the applicant was being harassed by members of his command. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. Applicant was diagnosed in service with Unspecified Cognitive Dysfunction and an Adjustment Disorder and has been service-connected by the VA for Dysthymic Disorder that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant was diagnosed in-service with Unspecified Cognitive Dysfunction and an Adjustment Disorder and has been service-connected by the VA for Dysthymic Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor determined that the medical conditions partially mitigate the basis of separation. Applicant's Unspecified Cognitive Dysfunction characterized by extreme difficulty with recall and short term memory is associated with his multiple FTRs and failing to secure a spare M240 barrel, which are part of the basis of separation misconduct. There is no association between applicant's BH conditions and the remaining misconduct of negligently discharging a M240 and failing to adhere to grooming standards as those are deliberate acts. (4) Does the condition or experience completely outweigh the discharge? No. Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's non-medically mitigated offenses of negligently discharging a M240 and failing to adhere to grooming standards were not fully outweighed by the applicant's BH diagnosis for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge and corresponding SPD code need to be changed. Applicant's medical conditions partially mitigated the basis of separation misconduct except negligently discharging a M240 and failing to adhere to grooming standards. The Board determined that the narrative reason was too harsh for negligently discharging a M240 and failing to adhere to grooming standards and that relief was warranted. (2) The applicant contends harassment and discrimination by members of the chain of command. The Board considered all available evidence and took into account the letters of witnesses regarding the contended harassment and discrimination the applicant experienced while in service. (3) The applicant contends he was diagnosed with Persistent Depressive Disorder with anxious distress by the VA. Applicant's medical conditions partially mitigated the basis of separation misconduct except negligently discharging a M240 and failing to adhere to grooming standards. The Board determined that the narrative reason was too harsh for negligently discharging a M240 and failing to adhere to grooming standards and that relief was warranted. (4) The applicant contends his command did not afford him the opportunity for rehabilitation. The Board considered this contention but determined the evidence did not support this contention. (5) The applicant desires to rejoin the Military service. The Board considered this contention and determined based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." (6) The applicant contends he has obtained employment and volunteers in his community. The Board considered applicant's post-service accomplishments. 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. c. The Board determined the discharge is inequitable based on the applicant's post-service accomplishments, the totality of the circumstances surrounding the discharge and relatively minor non-mitigated offenses. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because applicant's diagnosed Unspecified Cognitive Dysfunction and Adjustment Disorder partially mitigated the basis of separation misconduct, and the remaining misconduct, negligently discharging a M240 and failing to adhere to grooming standards were minor misconduct that warranted an upgrade based on the totality of the applicant's circumstances, including his post-service accomplishments. (2) The Board 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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change a. 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 AR20210003271 9