1. Applicant's Name: a. Application Date: 17 September 2020 b. Date Received: 2 November 2020 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, a narrative reason change, and change to the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, would like an upgrade of the discharge for the purpose of being able to go to school. The applicant's goal is to open own business one day. The applicant also contends issues with PTSD and Other Mental Health. In a records review conducted on 23 March 2022, 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: 6 December 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 February 2019 (2) Basis for Separation: The applicant was informed of the following reasons: for having physically controlled a vehicle while drunk and violating the no contact order between the applicant and PFC J.P. on or about 11 November 2018 (3) Recommended Characterization: General (Under Honorable Conditions). It was also recommended that the applicant's separation be suspended for a period of 12 months (not to exceed 12 months). (4) Legal Consultation Date: 6 February 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: On 13 February 2019, the separation authored directed that the applicant be separated, but that the separation be suspended for a period of 12 months. On 7 August 2019, the applicant was notified by the unit commander that IAW AR 635-200, para 1-18 that the suspended discharge dated13 February 2019 was being considered for vacation. The notification was acknowledged by the applicant. On 19 August 2019, the applicant's chain of command after a review of the investigation into the allegation against the applicant recommended to vacate the suspended separation. On 23 August 2019, the separation authority having reviewed the separation packet on the applicant and after carefully considering all matters, directed the vacation of the applicant's suspended separation. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 November 2017 / 3 years, 22 weeks b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-1 / 88M10, Motor Transport Operator / 2 years, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Law Enforcement Report, dated 2 May 2018, which indicates the applicant was the subject of investigation for Assault. Summarized Record of Proceedings Under Article 15, UCMJ, dated 27 July 2018, for unlawfully striking PV2 J.P., in the face with a closed fist on 28 April 2018. The punishment consisted of extra duty for 3 days and restriction for 5 days. Military Police Desk Blotter, dated 11 November 2018, which indicates the applicant was the subject of investigation for failure to obey a lawful order, drunken operation of a motor vehicle, and alcohol related traffic offense. General Officer Memorandum of Reprimand, dated 20 November 2018, which indicates the applicant was reprimanded for driving under the influence of alcohol on 11 November 2018. After being transported to the Military Police station and administered an INTOXILYZER 9000 breath alcohol test, which the applicant failed to provide a sufficient sample for testing. Under host nation laws, the legal limit for operating a vehicle on German roadways was 0.05g/210L. FG Article 15, dated 28 December 2018, for disobeying a lawful order by CPT S.D.K, to avoid any communication with PFC J.P., per a no contact order on or about 11 November 2018 and operating a vehicle while drunk on or about 11 November 2018. The punishment consisted of forfeiture of $819.00 pay per month for 2 months (suspended), and extra duty and restriction for 45 days. Law Enforcement Report, dated 31 July 2019, indicates the applicant was the subject of investigation for fleeing and eluding a law enforcement officer; resisting apprehension, exceeding the posted speed limit (57 KPH in a posted 30 KPH), and operating a USAREUR plated vehicle with a revoked USAREUR Driver's License. Report of Mental Status Evaluation, dated 10 December 2018, indicates the applicant did not report nor endorse symptoms of PTSD, TBI, depression, anxiety, panic or sexual assault during military service. It was noted that the applicant understood and participated in administrative proceedings and appreciated the difference between right and wrong. The applicant met medical retention standards in accordance with AR 40-501. Report of Medical Assessment, dated 22 October 2019 item 20 "Health Care Provider Comments," indicates the patient / (applicant) reported depression and anxiety had worsened due to situation. Possibly reinjured left ankle after tripping on free weight 5 days ago. Negative counseling statements reference several acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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), 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) 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. (6) 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. (7) 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 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. f. 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. 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, a narrative reason change, and change to the reentry eligibility (RE) code. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of records indicates separation action was initiated against the applicant for having physically controlled a vehicle while drunk and violating the no contact order between the applicant and PFC J.P. on or about 11 November 2018. 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 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 seeks relief contending having issues with PTSD and Other Mental Health. The applicant expressed a desire for an upgrade of the discharge for the purpose of being able to go to school. The applicant's goal is to open own business one day. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. 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 was diagnosed with the following potentially mitigating BH conditions: Major Depressive Disorder (MDD), PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the VA has service-connected the applicant for the diagnoses of PTSD and MDD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. It is the opinion of the Board's Medical Advisor that the applicant has two BH diagnoses, PTSD and MDD, which mitigate some of the misconduct. As there is an association between PTSD/MDD and the use of alcohol to self-medicate symptoms, there is a nexus between applicant's diagnosis of PTSD/MDD and the arrest for DUI. PTSD and MDD, however, do not mitigate the offenses of violating a no-contact order, driving with a suspended license, fleeing arrest and striking someone in the face with a closed fist. Actions such as these are not part of the natural sequelae or history of PTSD or MDD as neither condition does not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that any of the applicant's medical conditions completely outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant seeks relief contending having issues with PTSD and Other Mental Health. The Board determined this contention was valid and mitigated part of the basis for separation - DUI. However, the offenses of violating a no-contact order, driving with a suspended license, fleeing arrest and striking someone in the face with a closed fist were not mitigated or excused, thus the discharge was proper and equitable. (2) The applicant expressed a desire for an upgrade of his discharge for the purpose of being able to go to school. The applicant's goal is to one day open own business. 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 that 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 of all the evidence before the Board, the applicant's PTSD/MDD did not excuse or mitigate the offenses of violating a no-contact order, driving with a suspended license, fleeing arrest and striking someone in the face with a closed fist. 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, 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 / 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 AR20210006773 1