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, his separation was based on two incidents which occurred in quick succession. The applicant was suffering from ongoing symptoms related to a Traumatic Brain Injury (TBI) he suffered in a parachuting accident. Under recent guidance applicable to TBI related cases, the nature of the applicant's TBI and related symptoms mitigate and outweigh the discharge and warrant relief. The applicant's performance during this time was satisfactory and earned several awards. He was promoted in due course to Specialist and reenlisted for a period of four years. In March 2015, the applicant suffered a TBI as a result of sustaining multiple blows to the head on an airborne proficiency jump. He was not seen for three days although he had headaches, difficulty concentrating and memory issues. Although the applicant expressed to behavioral health personnel he was having problems with his chain of command before the TBI, there is no evidence of any formal discipline or documentation of behavioral issues similar to those forming the basis for his involuntary separation. Since his discharge, the applicant has made a sustained effort to professionally and personally rehabilitate himself. He completed a basic fire fighter certification and earned an honors list certificate for academic achievement from Houston Community College. He also received a Bachelor of Science in criminal justice administration with an associate of arts in criminal justice from the University of Phoenix. In a records review conducted on 24 March 2022, and by a 4 - 1 vote, the majority of the Board determined the discharge is inequitable based on the applicant's quality of service, and post- service accomplishments compared to the medically unmitigated basis for separation. 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: 1 September 2015 c. Separation Facts: (1) Date of Notification of Intent to Separate: 27 July 2015 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 23 May 2015, without authority, the applicant went from his appointed place of duty, to wit: 2305 hours motor pool guard, located at 3rd Brigade Combat Team (Rear) (Provisional) motor pool; on or about 23 May 2015, he was disrespectful in deportment toward Sergeant D. P. a noncommissioned officer, by rolling his eyes and walking away while he was talking to him; on or about 13 April 2015, with intent to deceive, make to Sergeant G. N., an official statement, to wit: "My barracks room is clear and empty," or words to that effect, which statement was totally false; on or about 13 April 2015, with intent to deceive, make to Sergeant G. N., an official statement to wit: "The barracks office was booked and I had to schedule an appointment to clear my room at 23 April 2015," or words to that effect, which statement was false. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 27 July 2015 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 March 2015 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M1P, Motor Transport Operator / 3 years, 1 month, 22 days d. Prior Service / Characterizations: RA, 10 July 2012 - 3 March 2015 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: ARCOM, AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his medical records, dated 14 September 2015, which reflect the applicant experienced a concussion following a jump in March 2015 and the applicant also stated he has been having difficulty with his current chain-of-command. The applicant provided a copy of his VA rating decision, dated 19 April 2018, which reflects he was rated 10 percent for TBI. The applicant provided a copy of Neuropsychiatric Review Independent Medical Evaluation, dated 28 October 2019, which reflects the applicant was diagnosed with TBI with extended post-concussion syndrome and service connected TBI. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief, with all listed enclosures; VA statement of service-connected disabilities; VA rating decision; VA summary of benefits letter; DA Form 349; Supplemental Guidance to Military Board for Correction of Military/Naval Records; Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance; case separation packet; ADRB Case, Report, Directive; medical records. 6. POST SERVICE ACCOMPLISHMENTS: Counsel states since the applicant's discharge, he has completed a basic fire fighter certification and earned an honors list certificate for academic achievement from Houston Community College. He also received a Bachelor of Science in criminal justice administration with an Associate of Arts in criminal justice from the University of Phoenix. 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. (7) 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 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 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 the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends he suffered from TBI due to an airborne jump. The applicant provided a copy of his VA rating decision which reflects he was granted 10 percent service connection for TBI. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends the command failed to properly assess his previous good service and ultimately rushed to involuntarily separate him. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he completed a basic fire fighter certification and earned an honors list certificate for academic achievement from Houston Community College. He also received a Bachelor of Science in criminal justice administration with an associate of arts in criminal justice from the University of Phoenix. 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 and found applicant is diagnosed and service connected by the VA with TBI that could mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that applicant's TBI existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between TBI and difficulty controlling impulses, applicant's TBI mitigates the disrespect basis for separation, but not leaving appointed place of duty and making false statements since TBI does not impact one's ability to distinguish from right and wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor that applicant's TBI partially mitigated disrespect for the reasons listed in (3) above, but did not outweigh the medically unmitigated misconduct of leaving his appointed place of duty and making false statements. b. Response to Contentions: (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board determined that this contention was valid and voted to upgrade the characterization of service due to applicant's quality of service and post service accomplishments making the discharge inequitable as compared to applicant's medically unmitigated misconduct of leaving his appointed place of duty and making false statements. (2) The applicant desires to rejoin the Military Service. 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 the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during proceedings, but ultimately did not rely on this contention due to an upgrade being granted because applicant's quality of service and post service accomplishments made the discharge inequitable as compared to applicant's medically unmitigated misconduct of leaving his appointed place of duty and making false statements. (4) The applicant contends good service. The Board considered this contention during board proceedings and concluded an upgrade to the characterization of service was warranted. (5) The applicant contends he suffered from TBI due to an airborne jump. The Board liberally considered the VA rating and service connection for TBI during the proceedings and concluded an upgrade to the characterization of service was warranted because applicant's quality of service and post service accomplishments made the discharge inequitable as compared to applicant's medically unmitigated misconduct of leaving his appointed place of duty and making false statements. (6) The applicant contends the command failed to properly assess his previous good service and ultimately rushed to involuntarily separate him. The Board considered this contention but concluded that the weight of the evidence did not support any conclusion that applicant's command acted in any arbitrary or capricious manner throughout applicant's discharge process. (7) The applicant contends he completed a basic fire fighter certification and earned an honors list certificate for academic achievement from Houston Community College. He also received a Bachelor of Science in criminal justice administration with an associate of arts in criminal justice from the University of Phoenix. The Board considered this contention during deliberation and ultimately granted relief because applicant's quality of service and post service accomplishments made the discharge inequitable as compared to applicant's medically unmitigated misconduct of leaving his appointed place of duty and making false statements. c. The majority of the Board determined the discharge is inequitable because applicant's quality of service and post service accomplishments made the discharge inequitable as compared to applicant's medically unmitigated misconduct of leaving his appointed place of duty and making false statements. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because applicant's quality of service and post service accomplishments made the discharge inequitable as compared to applicant's medically unmitigated misconduct of leaving his appointed place of duty and making false statements. (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 e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210003298 3