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, the administrative separation board made a mistake when it determined the applicant should be administratively separated under AR 635-200, Chapter 14, paragraph 12c and d; it determined the applicant's command did not, or reasonably could not have known of the applicant's arrest for DWI in 2013; it determined the applicant's arrests for DWI in 2013 and 2015 could be used for separation purposes; it determined the applicant's arrest for DWI in 2013 could be used to determine characterization of discharge; it determined the applicant's characterization of discharge to be General (Under Honorable Conditions); the Chain of Command violated Army Regulation in separating the applicant under AR 635-200 Chapter 14; the applicant did not intentionally deceive the command when it was time for reenlistment. The applicant's DWI arrests were isolated incidents, separated by two years of excellent service. In a records review conducted on 14 April 2022, and by a 3 - 2 vote, the majority of Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and prior-period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable. 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: 11 March 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 May 2017 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 29 August 2015 and on or about 14 August 2013, the applicant wrongfully operated a motor vehicle while impaired. Subsequently, the applicant received a General Officer Memorandums of Reprimand filed on 16 March 2017 and 13 April 2017. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 May 2017 (5) Administrative Separation Board: On 12 September 2017, the applicant was notified to appear before an administrative separation board and advised of rights. On 14 November 2017, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of general (under honorable conditions). On 10 January 2018, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: The separation authority's memorandum is incomplete from the service record, however, the separation authority approved the Report of Proceeding, dated 10 January 2018, with a General (Under Honorable Conditions). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 March 2016 / 2 years b. Age at Enlistment / Education / GT Score: 30 / 2 years' college / 124 c. Highest Grade Achieved / MOS / Total Service: E-6 / 68W3P, Health Care Specialist / 11 years, 2 months, 1 day d. Prior Service / Characterizations: RA, 11 January 2007 - 11 April 2010 / HD RA, 12 April 2010 - 11 March 2016 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Afghanistan (15 August 2011 - 14 August 2012); Iraq (18 December 2007 - 15 July 2008; 15 August 2009 - 30 July 2010) f. Awards and Decorations: ACM-CS, ARCOM-4, AAM-4, MUC-2, AGCM-3, NDSM, GWOTSM, ICM-2CS, NCOPDR, ASR, OSR-3, NATOMDL, USNUC g. Performance Ratings: 31 August 2015 - 29 August 2016 / Highly Qualified 30 August 2016 - 29 August 2017 / Qualified h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand dated 1 August 2016. The applicant was reprimanded for driving while under the influence of alcohol. On 29 August 2015, Harnett County Police conducted a license checkpoint. Upon approaching the check point, the applicant came to a sudden stop. Upon approaching the vehicle, the officer detected an odor of alcohol emitting from the applicant. The applicant underwent a field sobriety test and a breathalyzer test, which showed a blood alcohol content was .11 percent. This action was unacceptable and would not be tolerated. General Officer Memorandum of Reprimand dated 2 February 2017. The applicant was reprimanded for driving while under the influence of alcohol. On 14 August 2013, Harnett County Police conducted a license checkpoint. Upon approaching the applicant vehicle, the police officer detected an odor of alcohol emitting from the applicant. The applicant underwent a field sobriety test and a breathalyzer test, which showed a blood alcohol content of .10 percent. This action was unacceptable and would not be tolerated. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 8 September 2016, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: Alcohol abuse, uncomplicated. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal brief with Appendixes 1 to 16. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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-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 changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, 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 (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the separation code (SPD) should be changed. Separation 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 14-12c, is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the separation code entered in block 26 of the form, will be 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 SPD code to be entered under this regulation. The applicant contends the reentry eligibility (RE) code should be changed. 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 administrative separation board made a mistake when: It determined the applicant: should be administratively separated under AR 635-200, Chapter 14, paragraph 12c and d; it determined the applicant's command did not, or reasonably could not have known of the applicant's arrest for DWI in 2013; it determined the applicant's arrests for DWI in 2013 and 2015 could be used for separation purposes; it determined the applicant's arrest for DWI in 2013 could be used to determine characterization of discharge; it determined the applicant's characterization of discharge to be General (Under Honorable Conditions); and, the Chain of Command violated Army Regulation in separating the applicant under AR 635-200 Chapter 14; the applicant did not intentionally deceive the command when it was time for reenlistment. The notification of initiation of separation proceedings, shows the specific reasons for separation included two GOMORs imposed during the period under review based on misconduct from a previous period of service. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the events which led to the discharge from the Army were 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, including three combat tours. The Board considered the service accomplishments and the quality of service. 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 that applicant is diagnosed and service connected by the VA for Neurosis that could mitigate the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for Neurosis. Service connection establishes that applicant's Neurosis existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor determined that the applicant's medical condition does not mitigate the applicant's basis of separation because applicant's Neurosis is not associated with operating a vehicle under the influence of alcohol. This is further supported by the active duty medical record which indicates that applicant's Neurosis was not contributory to his DUI's, and that his primary BH condition was substance abuse. (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 applicant's Neurosis outweighed the DUIs that were the basis for applicant's separation. b. Response to Contentions: (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and the applicant's quality of service, but determined the current narrative reason is appropriate. (2) The applicant contends the separation code (SPD) should be changed. The Board considered this contention and the applicant's quality of service, but determined the current SPD is appropriate. (3) The applicant contends the reentry eligibility (RE) code should be changed. The Board considered this contention and the applicant's quality of service, but determined the current RE code is appropriate. (4) The applicant contends the administrative separation board erred in their determinations. The Board considered this contention but determined the weight of the evidence, including in the AMHRR, does not contain any indication or evidence of arbitrary or capricious actions by the command. (5) The applicant contends the events which led to the discharge from the Army were isolated incidents. The Board considered this contention during the proceedings, but found AR 635-200 supports the validity of a separation based on even a single incident. (6) The applicant contends good service, including three combat tours. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's quality of service prior to the misconduct. c. The majority of Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and prior-period of honorable service. d. Rationale for Decision: (1) The majority of the Board voted to change the applicant's characterization of service to Honorable due to quality of service, including combat service, and prior period of honorable service that makes the current discharge characterization based on the applicant's misconduct of wrongfully operating a motor vehicle while impaired inequitable. 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 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: 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 AR20210003378 8