1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 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, applicant requests to be retained or given an honorable discharge. Applicant was not notified of serious misconduct under the regulation. Applicant was charged with DUI, Speeding, Implied Consent and Evading Arrest. Applicant was always willing to give a breathalyzer but the officer did not have a breathalyzer, the officer wanted to take applicant's blood on the side of the road which frightened applicant a little so applicant said no. All charges against applicant were dropped except for the DUI because the officer had no substantial proof applicant was guilty of the other three laws which applicant was accused of breaking. Applicant was undergoing behavioral health for applicant's PTSD before being kicked out, which is still untreated and applicant's alcohol abuse comes from applicant's PTSD. Applicant does not want this mistake to define applicant for who applicant was and who applicant is today. Applicant wants to receive benefits, education benefits over all, because applicant would like to go back to school and continue to be great and hopefully reuniting with the force one day as a chief officer. In a records review conducted on 16 December 2021, 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 January 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 28 November 2018 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant violated the Tennessee Implied Consent law by failing to submit to a chemical test, as requested by a Tennessee Police Officer, to determine the alcohol content of his blood. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 December 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 28 December 2018 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 August 2015 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 3 years, 5 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Clarksville Police Department Incident Report, dated 11 August 2018, reflects the applicant was arrested for 90D Driving Under the Influence, 90Z Evading Arrest and 91Z Implied Consent. CG Article 15, dated 15 August 2018, for having knowledge of a lawful order issued by SGT T. G., to bring IOTV to 0630, 0930, 1300 and 1630 formations, an order which it was his duty to obey, did, on or about 209 May 2018, fail to obey the same by wrongfully not bringing his IOTV to aforementioned formation times. The punishment consisted of a reduction to E-3 (suspended); forfeiture of $478 pay (suspended); and, extra duty for 14 days. Administrative Reprimand, dated 25 September 2018, for reprehensible conduct of refusing to take a lawfully requested test to measure the alcohol content in his blood, in violation of the Tennessee implied content law on 11 August 2018. Also on 1 February 2016, applicant was arrested in Tennessee with a breath alcohol content of .127, while underage. It was totally unacceptable for one alcohol related driving offense, let alone two. Report of Mental Status Evaluation, dated 6 November 2018, reflects the applicant was cleared for administrative action. He could understand and participate in administrative proceedings and appreciate the difference between right and wrong. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's medical records reflect applicant was being treated for alcohol dependence. 5. APPLICANT-PROVIDED EVIDENCE: DD form 293; three letters of support; Medical Records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, applicant is a loving husband and father and has kept a steady job since his discharge. Applicant received a promotion at this job after being there for only two months over the employees which were already there because of applicant's work ethic and applicant stood out amongst his peers. 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 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-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 he was not notified of serious misconduct under the regulation. The AMHRR reflects the applicant acknowledged Receipt of Separation Notice, under the provisions AR 635-200, Chapter 14-12c, Commission of Serious Offense on 28 November 2018. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he was undergoing behavioral health for his PTSD before being kicked out which is still untreated and his alcohol abuse comes from his PTSD. The applicant submitted medical records to support his contention. The applicant's AMHRR contains no documentation of PTSD diagnosis. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 6 November 2018, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant contends good service. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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 third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct while serving in the Army. 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 and found the applicant was diagnosed in-service with Other Reactions to Severe Stress after being robbed at gunpoint and was diagnosed and service connected by the VA with Somatization Disorder. Applicant asserts receiving treatment for PTSD in-service in a self-authored statement, but applicant's AMHRR contains no documentation of PTSD diagnosis. Applicant's diagnosed BH conditions and separately PTSD assertion could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor determined applicant's diagnosed Other Reactions to Severe Stress with Somatization Disorder and applicant's asserted PTSD existed during applicant's military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor opined that neither of applicant's diagnosed conditions, nor PTSD mitigate applicant's refusal to take a blood test that led to applicant's separation. Applicant's conscious act to refuse the blood test requires motivation and rationalization, neither are associated with the sequelae of applicant's diagnosed or claimed medical conditions. (4) Does the condition or experience 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 offense of failing to submit to a chemical test to determine blood alcohol levels outweighed the applicant's BH diagnoses of Other Reactions to Severe Stress and Somatization Disorder, as well as PTSD assertion, for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends he was not notified of serious misconduct under the regulation. The Board considered this contention but concluded that the applicant was notified on 20 November 2018 and consulted with legal on 8 December 2018 regarding applicant's misconduct. (2) The applicant contends he was undergoing behavioral health for his PTSD before being kicked out, which is still untreated and his alcohol abuse comes from his PTSD. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records and found the applicant was diagnosed in-service with Other Reactions to Severe Stress and VA diagnosis of Somatization Disorder. However, neither of applicant's diagnosed conditions, nor applicant's assertion of PTSD, were associated with the misconduct that led to the separation. (3) The applicant contends good service. The Board considered applicant's quality of service and determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct of failing to submit to a chemical test to determine alcohol levels in the blood, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (4) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined 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 contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's BH diagnoses of Other Reactions to Severe Stress and VA diagnosis of Somatization Disorder, and applicant's asserted PTSD, did not mitigate the offenses of failure to submit to a blood alcohol test. 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 Change 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 AR20210003330 1