1. Applicant's Name: a. Application Date: 23 October 2020 b. Date Received: 26 October 2020 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, through counsel, an upgrade to honorable and a narrative reason change. The applicant's counsel seeks relief contending, in effect, the applicant was not given a chance to be rehabilitated and was separated 3 months prior to his expiration term of service. The applicant's misconduct was an isolated incident and there were no victims. Since being separated, the applicant completed his bachelor's degree and began employment as a contractor as a IT professional. The factors cited in the Wilke memo should be considered in determining whether to grant relief based on inequity. In a records review conducted on 1 September 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's quality of service, the circumstances surrounding the discharge and OBHI diagnoses. 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions b. Date of Discharge: 18 May 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: On or about 25 December 2017, the applicant operated a motor vehicle with BAC of .12 g/210L. (3) Recommended Characterization: General, under honorable conditions (4) Legal Consultation Date: 29 March 2018 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 April 2018 / General, under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 May 2015 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12B, Combat Engineer / 3 years, 14 days d. Prior Service / Characterizations: None / None e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM, GWOTSM, ASR, Parachutist Badge g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A Draft Law Enforcement Initial Report reflects the applicant was charged with impaired driving and failing to maintain lane on 25 December 2017. An Army Substance Abuse Program (ASAP) Enrollment form dated 26 December 2017, reflects the applicant was command referred to ASAP due to being arrested for DUI on 25 December 2017. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Mental Status Evaluation, dated 16 March 2018, reflects the applicant could understand and participate in administrative proceedings and appreciate the difference between right and wrong. The applicant was diagnosed with alcohol use disorder, mild. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Counsel's Brief, DD Form 214, Applicant Statement, Separation Documents, Medical Records, Letters of Support-6, excerpt of AR 635- 200, ERB, Certificates, Awards, Degree, ADRB Case AR20190003522, Wilkie Memorandum 6. POST SERVICE ACCOMPLISHMENTS: The applicant's counsel states being separated the applicant completed his bachelor's degree and began employment as a contractor as a IT professional. The applicant states he volunteers in his community and has taught children in the Washington D.C. 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), dated 25 September 2019, 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, states 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). 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and a narrative reason change. The record confirms the applicant's discharge was appropriate because the quality of his 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 (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant's counsel contends the applicant was not given a chance to be rehabilitated and was separated 3 months prior to his expiration term of service. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. The applicant's counsel also contends misconduct was an isolated incident and there were no victims. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's counsel further contends since being separated the applicant completed his bachelor's degree and began employment as a contractor as a IT professional. The Army Discharge Review Board 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 may 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. The applicant's counsel request the applicant's narrative reason be changed. However, the applicant was separated under the provisions of Paragraph 14-2c 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 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that 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 that no deviation is authorized. There is no provision for any other reason to be entered under this regulation The third party statements provided with the application speak highly of the applicant's character; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant's counsel states the factors cited in the Wilke memo should be considered in determining whether to grant relief based on inequity. 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 DoD and VA medical records and found the applicant was diagnosed with Alcohol Use Disorder (OBHI) by the military, which, in the opinion of the Board's Medical Advisor, a voting member, could potentially mitigate the misconduct which led to separation from the Army. The applicant is post-service connected for an Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Unknown. While the applicant references "external reasons" for the DUI, this is never clarified. As such, whether or not the applicant was referring to an adjustment reaction or not is unknown. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While liberal consideration was applied, an Adjustment Disorder does not lead to impaired decision making. The applicant could coherently discuss the events leading up to the DUI, reflecting knowledge he had been drinking, assessing his level of intoxication, and making the decision to leave, believing he was not impaired; these are not traits coinciding with mitigating conditions. Accordingly, records are void of a mitigating diagnosis or condition. (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 DUI outweighed the applicant's Adjustment Disorder, because it does not lead to impaired decision making. b. Response to Contentions: (1) The applicant's counsel contends the applicant was not given a chance to be rehabilitated and was separated 3 months prior to his expiration term of service. The Board determined this contention was valid and voted to grant the requested relief. (2) The applicant's counsel also contends misconduct was an isolated incident and there were no victims. The Board determined this contention was valid, and determined that relief was warranted. (3) The applicant's counsel further contends since being separated the applicant completed his bachelor's degree and began employment as a contractor as a IT professional. The Army Discharge Review Board 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 may 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. c. The Board determined the discharge is inequitable based on the applicant's quality of service, the circumstances surrounding the discharge (OBHI diagnosis) and post-service accomplishments. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant quality of service which clemency was warranted for reasons it being an unaggravated DUI and only evidence of misconduct in the available record and 5 strong letters of support. Thus the prior characterization is no longer appropriate. (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 AR20210005441 1