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 seeks relief contending, in effect, the applicant served his six years of enlistment time in the selected reserve. The applicant's selected reserve unit should have transferred him to the IRR upon the applicant repeatedly notifying them he had been hired as a DoD contractor in Honduras in accordance with 32 (Code of Federal Regulations) CFR 100.5(b)(4). Further, the applicant's discharge is inequitable when the totality of his honorable fourteen years combined active and reserve service is considered. The applicant requests an upgrade his separation code to a corresponding code. In a records review conducted on 3 March 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: NIF / AR 135-178 / NIF / NIF / NIF / General (Under Honorable Conditions) b. Date of Discharge: 23 March 2012 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: The applicant's most recent, available reenlistment document, in the Army Reserve, reflects he reenlisted on 6 May 2002. The AMHRR is void of any other reenlistment document after 6 May 2002. / NIF b. Age at Enlistment / Education / GT Score: 39 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-6 / 92A30, Automated Logistical Specialist / 17 years, 10 months, 15 days d. Prior Service / Characterizations: RA, 20 February 1991 - 21 February 1995 / HD USAR, 22 February 1995 - 3 February 1999 / NA (Break in Service) USAR, 6 May 2002 - 22 April 2004 / NA OAD, 23 April 2004 - 9 June 2006 / HD USAR, 10 June 2006 - 13 October 2006 / NA AD, 14 October 2006 - 22 July 2007 / HD USAR, 23 July 2007 - 22 February 2008 / NA AD, 23 February 2008 - 7 August 2008 / HD USAR, 8 August 2008 - 13 March 2009 / NA AD, 14 March 2009 - 29 August 2009 / HD e. Overseas Service / Combat Service: Germany, Honduras, SWA / Qatar (10 March 2008 - 4 August 2008) f. Awards and Decorations: JSCOM, ARCOM-2, JSAM, AAM-6, JMUA, AGCM, ARCAM, NDSM-2, ICM-CS, GWOTEM, GWOTSM, SWASM-BSS, NCOPDR, ASR, AFRMM-D-4, OSR-3, MOVSM g. Performance Ratings: 8 August 2009 - 7 August 2010 / Fully Capable 8 August 2010 - 7 August 2011 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Orders 20-338-00045, dated 3 December 2020, reflect the applicant was discharged from the Army Reserve, effective 23 March 2012, with a general (under honorable conditions). Orders number 20-338-00044, dated 3 December 2020, revoke orders 12-076-00024, reflecting the applicant was reduced from SSG to PV1, with an under other than honorable conditions discharge. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant stated he was employed in Honduras. 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 135-178 sets forth the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7, prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. 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 AMHRR is void of the specific facts and circumstances concerning the events which led to the applicant's discharge from the Army Reserve. The applicant's AMHRR does contain a properly constituted discharge order: Orders 20-338-00045, dated 3 December 2020. The orders indicate the applicant was discharged under the provisions of AR 135-178, with a characterization of service of general (under honorable conditions). The applicant contends his selected reserve unit should have transferred him to the IRR upon the applicant repeatedly notifying them he had been hired as a DoD contractor in Honduras. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. The applicant's discharge orders do not reflect the reentry code; therefore, the applicant should contact a local recruiter to determine eligibility 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 his separation code should change. Orders are published when service members are discharged from the U.S. Army Reserve, which indicate the effective date and characterization of the discharge. Separation codes usually are not included in the order. In insomuch as the applicant's discharge order does not have these elements, the ADRB has no basis for changing the discharge order. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends he has obtained employment. 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 his rank should be restored. The applicant's requested change does 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. 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. The applicant is diagnosed and service connected by the VA with PTSD that mitigates some basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The applicant is diagnosed and service connected by the VA with PTSD. Service connection establishes that PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor could not opine, even with liberal consideration of all the evidence, whether or not the applicant's service related PTSD, or other medical condition is a mitigating factor for the applicant's basis for separation without knowing the actual basis of separation. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions outweighed the basis for applicant's separation. b. Response to Contentions: (1) The applicant contends his selected reserve unit should have transferred him to the IRR upon the applicant repeatedly notifying them he had been hired as a DoD contractor in Honduras. The Board considered this contention but determined the AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant's statement alone was not sufficient evidence to overcome the presumption of government regularity. (2) The applicant contends his separation code should change. The Board determined that orders are published when service members are discharged from the U.S. Army Reserve, which indicate the effective date and characterization of the discharge. Separation codes usually are not included in the order. Since the applicant's discharge order does not have these elements, the ADRB has no basis for changing the discharge order. (3) The applicant contends good service, including a combat tour. The Board considered the applicant's length and quality of service to include overseas service during the proceedings. (4) The applicant contends he has obtained employment. 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, and in this case was unable to make any determination without knowing the basis for separation. (5) The applicant contends his rank should be restored. The Board determined that the applicant's requested change to the DD Form 214 does 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. 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 contentions 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, despite applying liberal consideration, the applicant's PTSD, Alcohol Dependence, Unspecified Anxiety Disorder, and Insomnia do not mitigate the discharge because any misconduct associated with the discharge is unknown, and therefore mitigation cannot be determined, nor did the weight of the evidence support any impropriety or inequity. The Board determined 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 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: No b. Change Characterization to: No Charge c. Change Reason / SPD code to: No Charge d. Change RE Code to: No Charge e. Change Authority to: No Charge 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 CFR Code of Federal Regulations 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 AR20210003286 1