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 applicant, through counsel, requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable and unjust because at the time the applicant was separated, the applicant was suffering from mental health issues, including anxiety, depression and PTSD. The applicant maintains not committing the misconduct which formed the basis of the applicant's separation action. Moreover, even if true, the allegations made against the applicant do not constitute a pattern of misconduct. The applicant's case fits squarely within the guidance issued by the Secretary of Defense and the Under Secretary of Defense and is therefore entitled to the requested relief. The applicant's overall service record at the time of separation and the applicant's conduct post-discharge is deserving of an honorable characterization of service. In a records review conducted on 31 May 2022, and by a 4-1 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Minor Infractions) / AR 635-200, Chapter 14-12a / JKN / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 8 August 2009 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: The applicant submitted a copy of Memorandum THRU Recorder, dated 15 July 2009, which reflects on 30 June 2009, an administrative separation board recommended the applicant be separated from the service with an under other than honorable conditions discharge. The senior defense counsel requested the recommendation be disapproved and the applicant be allowed to serve out the balance of the enlistment, which was less than 30 days until the applicant's ETS. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 August 2006 / 3 years b. Age at Enlistment / Education / GT Score: 36 / HS Graduate / 85 c. Highest Grade Achieved / MOS / Total Service: E-5 / 63B20, Wheeled Vehicle Mechanic / 20 years, 8 months, 18 days d. Prior Service / Characterizations: ARNG, 21 November 1988 - 1 August 1989 / NA IADT, 2 August 1989 - 7 February 1990 / HD ARNG, 8 February 1990 - 1 June 1993 / GD USARCG, 2 June 1993 - 16 April 1998 / NIF USAR, 17 April 1998 - 3 March 2001 / NIF USAR, 4 March 2001 - 8 August 2006 / NIF e. Overseas Service / Combat Service: SWA / Kuwait - Saudi Arabia (1 March 1991 - 4 April 1991) f. Awards and Decorations: ARCAM, NDSM-2, SWASM-2BSS, GWOTSM, ASR, SA- KUL-IBM / The applicant provided a copy of Permanent Orders 2-122715, dated 5 December 2006, which reflects the applicant was award the AGCM-6, however, the award is not reflected on the DD Form 214. g. Performance Ratings: 1 September 2006 - 15 January 2007 / Fully Capable 9 January 2007 - 8 January 2008 / Marginal 9 January 2008 - 8 January 2009 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: The applicant provided a copy of Order 09-211-00001, dated 30 July 2009, which reflects the applicant was reduced in grade from E-5 to E-1 effective 17 July 2009. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of the mental status evaluation, dated 7 January 2009, which reflects the applicant was diagnosed with: Axis I: Major Depressive Episode, In Remission. Remarks state based on a review of the medical records, interview with Soldier, and current treating professional's opinions, it is this examiner's clinical opinion the Soldier suffers from Major Depressive Episode, in remission, as well as Unresolved Grief, which is also remitted, due to the death of the young son in 2006. Since this event, Soldier has sought and received treatment in different forms and has been compliant with prescribed medications and therapies. At this time a Chapter 5-17 separation is not believed to be appropriate for this Soldier. Soldier wishes to stay in the Army to finish 20 years of Active Duty Service, and there appears to be no psychiatric reason why the Soldier would not be able to be an effective US Soldier. At this point it seems the Soldier has made a great deal of progress with treating professionals and has dealt with the majority of the issues. There are no indications of past or present suicidal ideation, homicidal ideation, or psychoses. The applicant has the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant provided a copy of VA Letter, dated 13 June 2019, which reflects the applicant was granted 90 percent combined service-connected disability, effective 1 December 2018, however the letter does not state the nature of the disability. The applicant is being paid at the 100 percent rate because the applicant is unemployable due to the service-connected disabilities. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with Tabs A through D. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has attended college and achieved a grade point average which placed the applicant on the Dean's List for the Fall 2012 semester. The applicant is also a proud single parent who is serving as a great example to the applicant's child through hard work. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKN" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). 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 requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12a, by reason of Misconduct (Minor Infractions), with a characterization of service of general (under honorable conditions). The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12a, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Minor Infractions)," and the separation code is "JKN." Army Regulation 635-8, Separation Processing and Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12a, is "JKN." The applicant 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 family issues affected behavior. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends harassment by the 1SG after the applicant sought treatment for grief. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends suffering from mental health issues, including anxiety, depression and PTSD. The applicant also denies committing the misconduct which formed the basis for the separation. The applicant provided a copy of Mental Status Evaluation (MSE), dated 7 January 2009, which reflects the applicant was diagnosed with: Axis I: Major Depressive Episode, In Remission. It was noted it is the examiner's clinical opinion Solder suffers from Major Depressive Episode, in remission, as well as Unresolved Grief, which is also remitted, due to the death of the applicant's young child in 2006. Since this event, Soldier has sought and received treatment in different forms and has ben compliant with prescribed medications and therapies. It is not recommended at this time this individual be administratively separated IAW AR 635-200, Chapter 5-17, as the applicant appears to have utilized treatment effectively and it has resulted in a decrease/elimination of symptoms. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct during and after leaving the Army. The applicant has attended college and achieved a grade point average which placed the applicant on the Dean's List for the Fall 2012 semester. The applicant is also a proud single dad who is serving as a great example to the applicant's child through hard work. 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 the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. Applicant is diagnosed with the following potentially-mitigating conditions: Anxiety Disorder, Bereavement without complications, loss of child, Depression, Major Depression, suicidal ideation, Generalized Anxiety Disorder, and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in-service BH diagnoses of Anxiety Disorder, Bereavement without complications, loss of child, Depression, Major Depression, and suicidal ideation and the applicant is service-connected for MDD. Applicant's asserted was not stated to be service- connected, and no other evidence supports a conclusion that applicant's PTSD is service- connected. (3) Does the condition or experience actually excuse or mitigate the discharge? No. It is the opinion of the Board's Medical Advisor, even after applying liberal consideration, that while the applicant has diagnoses of Major Depressive Disorder and other BH conditions, these BH conditions do not mitigate applicant's FTR and Failure to obey are not part of the sequela of symptoms associated with Major Depression, or other service-connected BH conditions. (4) Does the condition or experience outweigh the discharge? No. The Board, after applying liberal consideration, concurred with the Board's Medical Advisor that applicant's Major Depression and other BH conditions do not outweigh the applicant's unmitigated basis for separation. b. Response to Contention(s): (1) The applicant contends the narrative reason/SPD code for the discharge needs changed. The Board determined that the narrative reason and accompanying SPD code were proper and equitable, and voted no upgrade was warranted. (2) The applicant desires to rejoin the Military Service. The Board voted that no change is warranted to the current RE-code of RE-3, which is a waivable 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 (3) The applicant contends family issues affected behavior. The Board considered the applicant's unique family circumstances during deliberations but determined this contention did not warrant any discharge change. (4) The applicant contends harassment by the 1SG after the applicant sought treatment for grief. The Board considered this contention during deliberations, but determined the weight of the evidence supported a conclusion that the Command did not act in an arbitrary or capricious manner. (5) The applicant contends suffering from mental health issues, including anxiety, depression and PTSD. The applicant also denies committing the misconduct which formed the basis for the separation. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board liberally considered this contention, but determined that the BH conditions did not outweigh the unmitigated basis for separation. (6) The applicant has attended college and achieved a grade point average which placed the applicant on the Dean's List for the Fall 2012 semester. The applicant is also a proud single dad who is serving as a great example to the applicant's child through hard work. 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 considered these post-service accomplishments and determined that these accomplishments warranted an upgrade to the discharge characterization when combined with applicant's length and quality of service, to include combat service. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's length and quality of service, to include combat service, post service accomplishments in the 13 years since discharge outweighed the accepted bases for separation - failure to obey and report. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as 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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210003295 2