1. Applicant's Name: a. Application Date: 28 October 2019 b. Date Received: 24 November 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests, through counsel, an upgrade to honorable along with a reentry (RE) code, separation program designator (SPD) code and narrative reason change. The applicant's counsel seeks relief contending, in effect, the applicant served without any incidents until after a combat deployment. The applicant sustained a traumatic brain injury (TBI), a broken shoulder, and experienced several traumatic events. As result of the psychological effects of deployment the applicant received a DUI in 2017. The applicant has been diagnosed with post-traumatic stress disorder (PTSD) which excuses and mitigates the discharge. The applicant's PTSD existed during service and was caused by the applicant's nine-month deployment. The applicant believes the leadership discriminated against the applicant based on the applicant's sexual orientation. The applicant never received the administrative filing for BAH or Dual-Military Co-Location that was afforded to heterosexual servicemembers. The discrimination exacerbated the applicant's mental conditions that ultimately led to the applicant's discharge. Since being discharged the applicant sought extensive treatment for mental health conditions and has worked on sobriety and bettering mental health. Despite treatment, the applicant's evaluations show the applicant's PTSD impairs every aspect of the applicant's social and occupational function. The applicant is currently enrolled on the Military Diversion Program through the courts and has complied with the program's drug testing and counseling requirements. The applicant has a service-connection disability rating from the Department of Veteran Affairs (VA). b. Board Type and Decision: In a records review conducted on 6 September 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and post-service accomplishments. 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. The Board found the RE code proper and equitable and voted not to change it. 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: 23 February 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 23 January 2018 (2) Basis for Separation: The applicant was informed of the following reasons: On 30 September 2017, the applicant drove a vehicle while having a blood alcohol content of 0.176. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: The applicant waived the right to consult with counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 February 2016 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 January 2015 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11C10, Indirect Fire Infantryman / 3 years, 1 month, 19 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (28 February 2016 - 15 November 2016) f. Awards and Decorations: ARCOM, ACM-CS, NATO MDL, COA, NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: GOMOR, 22 November 2017, reflects the applicant was reprimanded for drunken operation of a vehicle. On 30 September 2017, Fort Carson Security Personnel stopped the applicant at gate 4, Fort Carson, Colorado and upon contact, a security officer detected signs of impairment and intoxication. Upon arrival at the Fort Carson Police, the applicant failed to satisfactory perform roadside maneuvers. The police officer administered a blood alcohol test which established the applicant's blood alcohol content at .176 grams of alcohol per 210 milliliters of breath. The applicant received a Developmental Counsel Form for being arrested for driving under the influence, involuntary separation from the Army, and for speeding. Law Enforcement Report dated 14 November 2017, in reference to the applicant driving a vehicle while under the influence of alcohol Report of Mental Status Evaluation (MSE) dated 14 December 2017, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant provides a letter from VA, dated 8 November 2022, which reflects, in part, the applicant was assessed as meeting diagnostic criteria for Alcohol Use Disorder and PTSD, chronic (Combat-PTSD). The applicant's diagnosis was directly linked to military service and started while the applicant was on the Army. The applicant also provides a letter from VA, dated 8 March 2023, which reflects the applicant was granted a combined service-connected disability rating of 90-percent. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, ERB-2, Soldier Deployment History Out- processing Report, DD Form 214-2, DD Form 2648, Legal Brief with 11 exhibits (429 pages) 6. POST SERVICE ACCOMPLISHMENTS: The applicant is currently enrolled on the Military Diversion Program through the courts and has complied with the program's drug testing and counseling requirements. 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) 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 through counsel request, an upgrade to honorable along with a RE code, SPD code and a narrative reason change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant through counsel requests the narrative reason for the discharge be 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 listed in tables 2-2 or 2-2 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 through counsel requests the SPD and RE codes 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 14-12c, is "JKQ." Army Regulation 635-8, Separation 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. 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. The applicant through counsel contends, in effect, the applicant served without any incidents until after a combat deployment. The applicant sustained a TBI, a broken shoulder, and experienced several traumatic events. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant through counsel contends, in effect, as result of the psychological effects of deployment the applicant received a DUI in 2017. The applicant has been diagnosed with PTSD which excuses and mitigates the discharge, and the applicant has a service-connection disability rating from VA. The applicant's AMHRR is void of a PTSD diagnosis. The applicant underwent a MSE on 14 December 2017, which reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant provides a letter from VA, dated 8 November 2022, which reflects, in part, the applicant was assessed as meeting diagnostic criteria for Alcohol Use Disorder and PTSD, chronic (Combat-PTSD). The applicant's diagnosis was directly linked to military service and started while the applicant was on the Army. The applicant also provides a letter from VA, dated 8 March 2023, which reflects the applicant was granted a combined service-connected disability rating of 90-percent. The applicant through counsel contends, in effect, the leadership discriminated against the applicant based on the applicant's sexual orientation. The applicant never received the administrative filing for BAH or Dual-Military Co-Location that was afforded to heterosexual servicemembers. The discrimination exacerbated the applicant's mental conditions that ultimately led to the applicant's discharge. The record does not contain any indication or evidence of arbitrary or capricious actions by the command or discriminatory actions and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant through counsel contends, in effect, the applicant's PTSD existed during service and was caused by the applicant's nine-month deployment. The applicant through counsel contends, in effect, since being discharged the applicant sought extensive treatment for mental health conditions and has worked on sobriety and bettering mental health. Despite treatment, the applicant's evaluations show the applicant's PTSD impairs every aspect of the applicant's social and occupational function. counseling requirements. 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 the applicant has the following potentially-mitigating diagnoses: Post-service, he is service connected for Anxiety. While there is disagreement over a PTSD diagnosis, providers have listed it and per liberal consideration it is accepted at face value irrespective of disagreement and lack of service connection. (2) Did the condition exist or experience occur during military service? Yes. Per applicant, PTSD existed in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and substance use, the basis for separation is mitigated by the applicant's PTSD diagnosis. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's PTSD outweighed the DUI basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant's counsel contends the applicant served without any incidents until after a combat deployment. The applicant sustained a TBI, a broken shoulder, and experienced several traumatic events. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's DUI. (2) The applicant's counsel contends the applicant's PTSD existed during service and was caused by the applicant's nine-month deployment. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's DUI. (3) The applicant's counsel contends as result of the psychological effects of deployment the applicant received a DUI in 2017. The applicant has been diagnosed with PTSD which excuses and mitigates the discharge, and the applicant has a service-connection disability rating from VA. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's DUI. (4) The applicant contends the leadership discriminated against the applicant based on the applicant's sexual orientation. The applicant never received the administrative filing for BAH or Dual-Military Co-Location that was afforded to heterosexual servicemembers. The discrimination exacerbated the applicant's mental conditions that ultimately led to the applicant's discharge. The Board considered this contention and found the record does not contain any indication or evidence of arbitrary or capricious actions by the command or discriminatory actions and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and post-service accomplishments. 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. The Board found the RE code proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's misconduct of a DUI. 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. 2. 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 AR20210008460 1