1. Applicant's Name: a. Application Date: 19 August 2020 b. Date Received: 25 August 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under honorable conditions (general). The applicant requests an upgrade to honorable and a narrative reason change. b. The applicant states, in effect that they are having difficulty securing a job because of their characterization of service, they reflected on the mistakes they made leading up to their discharge from the army and they have taken the necessary steps to correct their behavior. c. Board Type and Decision: In a records review conducted on 18 October 2023, and by a 5-0 vote, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. There is no change to the RE code. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of misconduct / AR 635-200 / JKA / RE-3 / General (under honorable conditions) b. Date of Discharge: 20 November 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 October 2019 (2) Basis for Separation: * Overindulgence: intoxicating liquor, incapacitated to properly perform duties on 5 December 2018 * On 5 December 2018, failed to obey a lawful command; not to consume alcohol * Found drunk while on duty at physical training formation on 26 August 2019 (3) Recommended Characterization: General (under honorable conditions) (4) Legal Consultation Date: The applicant waived legal counsel 22 October 2019 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 13 November 2019 / General (under honorable conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 August 2017 / 5 Years b. Age at Enlistment / Education / GT Score: 23 / GED / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 Private First Class / 31B1O Military Police / 2 years, 3 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) A Developmental Counseling Form dated 05 December 2018 provides that the applicant reported to work under the influence; their blood alcohol level was .188. * The commander issued a lawful order; they could not consume alcohol or have alcohol in their barracks room until further notice * The applicant was directed to ASAP (Army Substance Abuse Program) for a medical exam, and a substance abuse disorder evaluation (2) A Command Referral for a substance use disorder (SUD) Evaluation, dated 05 December 2018 provides the applicant was command referred to behavioral health (BH) for a comprehensive SUD assessment to determine if they met the criteria for enrollment into mandatory SUD treatment. (3) A Record of Proceedings under Article 15, UCMJ, dated 9 January 2019 provides the applicant received NJP for disobeying a lawful command and being incapacitated to perform duties and intoxicated on 5 December 2018. Punishment consisted of reduction in rank to private (PV2/E-2), forfeiture of $439 pay, extra duty, and limited post restriction for 14 days. (4) A certificate of completion dated 20 February 2019 provides the applicant completed a twelve-hour ASAP program of prevention research. (5) Two Developmental Counseling Forms dated 26 August 2019 provides the applicant reported to accountability formation intoxicated with a .169 blood alcohol content level. The applicant was flagged for involuntary separation. On the same day the commander completed a referral for SUD evaluation document, provides the applicant was referred to BH for a comprehensive SUD assessment. The document provides different Blood Alcohol Content (BAC) levels that were previously reported in 2018 (6) A Report of Mental Status Evaluation document dated 11 September 2019, provides that the applicant received a mental health evaluation that psychiatrically cleared them for administrative separations. (7) A Record of Proceedings under Article 15, UCMJ, dated 25 September 2019 provides the applicant received NJP for being drunk on duty on 26 August 2016. Punishment consisted of reduction in rank to private (E-1), extra duty and limited post restriction for 14 days. (8) A Report of Medical Assessment document dated 27 September 2019, provides that the applicant received a separation medical assessment/examination and was cleared for administrative separation. (9) A memorandum, Department of the Army, 519th Military Police Battalion, Fort Polk, Louisiana subject: Separation under AR 635-200, Chapter 14-12b dated 21 October 2019 provides the applicant's immediate commander notified them of their intent to separate them for patterns of misconduct with a recommended characterization of service of General (under honorable conditions). On 21 October 2019, the applicant acknowledged the commander's notification and basis for separation, their available rights, to include the right to consult with counsel prior to submitting their election of rights. (10) On 22 October 2019, the applicant waived consulting counsel and completed their election of rights, indicating they understood the prejudices that may occur in receiving a characterization of service of less than honorable and elected to not submit a statement(s) on their behalf. (11) On 11 November 2019 the appropriate authority approved the separation and directed the applicant be separated with a General (under honorable conditions) characterization of service. (12) A DD Form 214 shows on 20 November 2019 the applicant was discharged accordingly, they completed total active service of 2 years and 3 months. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293 (Discharge Review) application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted in support of 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 provides the authorized types of characterization of service or description of separation. (1) 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. (2) 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. (3) An 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. (4) Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated. In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for the following reasons: * Involuntary separation due to parenthood * Personality disorder * Other designated physical or mental conditions * Entry-level performance and conduct * Unsatisfactory performance * Minor disciplinary infractions or a pattern of misconduct * Failure to meet body fat standards (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. 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. A soldier subject to this discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so. Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 600-85 (Army Substance Abuse Program (ASAP)) governs the program and identifies Army policy on alcohol and other drug abuse, and responsibilities. The ASAP is a command program that emphasizes readiness and personal responsibility. It provides the ultimate decision regarding separation or retention of abusers is the responsibility of the Soldier's chain of command. Abuse of alcohol or the use of illicit drugs by military personnel is inconsistent with Army values and the standards of performance, discipline, and readiness necessary to accomplish the Army's missions. Individuals who do not self-refer for treatment and are subsequently identified as positive for controlled substances for which they do not have a valid prescription may be considered in violation of the UCMJ for drug misuse/abuse. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct g. 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: (1) 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. (2) 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. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. a. The applicant requests an upgrade to honorable. The applicant's DD Form 214 provides that the applicant received a General (under honorable conditions) characterization of service, rather than an under other than honorable conditions (UOTCH) discharge, which is normally considered appropriate for a soldier discharged for misconduct. b. Based on the available evidence the applicant enlisted in the Army at the age of 23 as a 31B (Military Police), on 05 December 2018 they were scheduled to perform law enforcement duties and reported to duty intoxicated; they received a nonjudicial punishment for disobeying a lawful command and for being intoxicated/incapacitated to perform duties. They were enrolled in ASAP and received a certificate of completion. They received their second nonjudicial punishment after reporting to accountability/ physical training formation intoxicated on 26 August 2019. c. A review of the record provides the administrative process was properly followed according to regulation. The applicant was notified of the intent to separate them for pattern of misconduct. They acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12b. They elected to not consult with counsel and did not submit a statement on their behalf. They completed 1 year, 5 months, and 23 days of their contractual obligation prior to their first date of reporting to duty intoxicated. d. Chapter 14 establishes policy and prescribes procedures for members being separated for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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/experiences: Anxiety DO, unspecified; Mood DO, unspecified. (Note-Adjustment DO is subsumed under diagnosis of Mood Disorder, unspecified. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found Adjustment DO, Anxiety DO, Mood DO were all diagnosed while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two mitigating BH conditions, both diagnosed during military service: Anxiety DO, unspecified; Mood DO, unspecified. As there is an association between these two BH conditions and the use of alcohol to self-medicate symptoms, there is a nexus between these diagnoses and the applicant's alcohol-related misconduct. Note-The diagnosis of Adjustment DO is subsumed under the diagnosis of Mood Disorder, unspecified. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation. b. Response to Contention(s): The applicant did not make any contentions. c. The Board determined the discharge was improper based on the applicant's BH condition, and grant relief in the form of an upgrade of the characterization of service to honorable, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service because the applicant's BH diagnoses mitigated the offenses of Overindulgence: intoxicating liquor, failure to obey a lawful command not to consume alcohol, and drunk while on duty at physical training formation. The applicant has an in-service diagnosis of Anxiety DO, unspecified; Mood DO, unspecified. (Note-Adjustment DO is subsumed under diagnosis of Mood Disorder, unspecified. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two mitigating BH conditions, both diagnosed during military service: Anxiety DO, unspecified; Mood DO, unspecified. As there is an association between these two BH conditions and the use of alcohol to self-medicate symptoms, there is a nexus between these diagnoses and the applicant's alcohol-related misconduct. Note-The diagnosis of Adjustment DO is subsumed under the diagnosis of Mood Disorder, unspecified. Based on the BH mitigation of the misconduct, the current discharge warranted an upgrade. (2) The Board voted to change the applicant's reason for discharge or accompanying SPD code to Misconduct (Minor Infractions), and the separation code to 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 AR20210009262 1