1. Applicant's Name: a. Application Date: 11 December 2020 b. Date Received: 15 December 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 seeks relief contending, in effect they are requesting a change in their characterization of service to honorable due to the unfair treatment they experienced from the battery commander that initiated their separation. The battery commander had shown patterns of unfair treatment toward soldiers, and buddy statements are provided to support this claim. To save face in front of the command team their battery commander threw them under the bus, additionally the commander was prematurely relieved of their duties and moved to a unit where they would have minimal negative impact on soldiers within the army. c. Board Type and Decision: In a records review conducted on 1 December 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Generalized Anxiety Disorder mitigating the applicant's DUI. 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 determined the reentry code was proper and equitable based on the applicant's medical diagnosis and voted not to change it. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, CH 14-12c / JKQ / RE-3 / Under Honorable Conditions (General) b. Date of Discharge: 13 July 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 December 2019 (2) Basis for Separation: Driving under the influence of alcohol with a BAC over the legal limit of .08 percent (3) Recommended Characterization: General, Under Honorable Conditions (4) Legal Consultation Date: 6 January 2020 (5) Administrative Separation Board: N/A (6) Separation Decision Date / Characterization: 19 May 2020 / General (under honorable conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 July 2016 / 5 years b. Age at Enlistment / Education / GT Score: 24 / Bachelor's Degree / 137 c. Highest Grade Achieved / MOS / Total Service: E-4 (Specialist) / 13B1P Cannon Crewmember / 4 years, 3 days d. Prior Service / Characterizations: N/A e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, ASR g. Performance Ratings: N/A h. Disciplinary Action(s) / Evidentiary Record: (1) An Enlistment/ Reenlistment Document provides the applicant enlisted in the United States Army Reserve at the rank of specialist (E-4) with an active duty obligation of 5 years on 20 May 2016. (2) A State of North Carolina Affidavit Revocation order provides that on 2 September 2019 the applicant was apprehended and charged for an impaired consent offense, they were speeding and had an odor of alcohol at which they admitted to drinking. A filed sobriety test was conducted, and the applicant had a positive PBT (preliminary breath test). * They had an alcohol concentration of 0.08 * They were prohibited from operating a motor vehicle on the highways of North Carolina for 30 days (3) Two Developmental Counseling Forms provides the applicant was counseled on 30 September 2019 for driving under the influence and failing to report they were apprehended to their chain of command. The applicant was pulled over for speeding they were traveling 94 MPH in a 60 MPH zone with a blood alcohol content of 0.08. The applicant signed the counseling form and stated, " Arrested for DWI not a DUI". On the same day they were counseled for being flagged for adverse actions, and involuntary separation. (4) A memorandum, Headquarters, Airborne Division, Fort Bragg, North Carolina, subject: A General Officer Memorandum of Reprimand, dated 28 November 2018, provides the applicant was reprimanded, with a direct order that the reprimand be filed in the applicant's AMHRR. * Battery commander recommended the filing of the GOMOR in the applicants AMHRR, they stated "...was not only arrested for DWI, but failed to report the incident to the chain of command for 24 days, the lack of integrity cannot be overlooked" * The Battalion Commander recommended not filing the GOMOR and the Brigade Commander recommended the filing of the GOMOR In the applicants AMHRR (5) A Report of Mental Status Evaluation document dated 12 December 2019, provides that the applicant received a mental health evaluation that psychologically cleared them for administrative action deemed appropriate by the separation authority. (6) On 18 December 2019 the applicant's battery commander notified them of their intent to separate them for driving under the influence of alcohol with a BAC over the legal limit of .08 percent under the provisions of AR 635-200, Chapter 14-12c (commission of a serious offense) with a recommended characterization of service of General (under honorable conditions). On 19 December 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. (7) On 6 January 2020, after having consulted with counsel the applicant completed their election of rights and elected to submit a statement(s) on their behalf. * "...since joining the military... have never received a negative mark on permanent army record..." "... receiving the DWI "is a gross anomaly" "...became injured to the point that I was no longer operating as an effective soldier in the capacity I was placed in, at this moment..."...currently "in the final stages of being med-boarded" "...please consider allowing the med board to take precedence" (8) On 3 February and 4 February 2020, the chain of command endorsed the commander's recommendation to separate the applicant prior to their expiration terms of service with a general (under honorable conditions). On 19 May 2020 the appropriate authority approved the separation and directed the applicant be separated with a General (under honorable conditions) characterization of service. (9) A DD Form 214 shows on 12 June 2017 the applicant was discharged accordingly, they completed a total active service of 4 years and 3 days. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Discharge Review) application, copy of their DD Form 214, the self-authored statement they submitted during their administrative separation, their complete separation packet and 4 character letters in support of their application. * Character letter dated 1 November 2019, from a family friend/neighbor states "has spoken to me about [their] recent issue of drinking and driving and [they] expressed regret over their lack of judgement, firmly believe through owning up to [their] mistake [they] would learn from this and work hard to improve..." * Buddy statement dated 15 November 2020, from an SGT/Squad Leader in the Army provides the applicant was awaiting medical discharge from the army, and their injuries left them limited tasks they could complete. Perception caused many coworkers to view the applicant as unprofessional and apathetic due to their limiting injuries. They believe the hostility and alienization caused the applicant to not report their infraction. The former Captain and First Segreant learned about the applicant's infraction during the first command and staff meeting with the Battalion Commander, hearing about the incident in that manner caused a significant embarrassment for them. " former captain chose the harsher path due to a desire for revenge" * Buddy statement dated 10 December 2020, from an SSG/NCO in charge of the training room states " the DWI was the only problem" they had with the applicant. "up until that point [they] had no negative actions pending against [them] and had received no negative counseling statements..." * A character letter from a 2nd Lieutenant in the army describes the applicant as " an exceptional leader and follower that exhibits all of the attributes required to perform the duties of a productive citizen" 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. Rehabilitative requirements are not required for individuals separated under Chapter 14-12c. * 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 14-12c, 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. (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 "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). 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: * 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 * 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-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 serious misconduct. b. Based on available evidence the applicant enlisted in the Army at the age 24. On 2 September 2019 they were pulled over by police for going 94 MPH in a 60 MPH zone. The officer smelled alcohol and the applicant voluntarily consented to a PBT test, they were apprehended for impaired consent ( DWI / driving while impaired) due to their BAC being 0.08. The applicant did not report their DWI and apprehension to their chain of command, they received a General Officer Memorandum of Reprimand and processed for administrative separation. 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 serious misconduct and acknowledged they understood the basis for separation under the provisions AR 635-200, CH 14-12c. They received the required mental health separation examination, however the AMHRR is void of the separation medical exam. 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: Generalized Anxiety DO (50%SC). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection establishes diagnosis existed or began during active 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 that the applicant has a mitigating BH condition, Generalized Anxiety DO (GAD). As there is an association between GAD and use of alcohol to self medicate anxiety symptoms, there is a nexus between his diagnosis of GAD and his offense of DWI. (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 Generalized Anxiety Disorder outweighed DUI basis for separation for the aforementioned reasons. b. Response to Contention(s): (1) They applicant contends they were treated unfairly by the battery commander that initiated their separation. The Board considered this contention and found no corroborating evidence to support the applicant's assertions. 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. c. The Board determined the discharge is inequitable based on the applicant's Generalized Anxiety Disorder mitigating the applicant's DUI. 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 determined the reentry code was proper and equitable based on the applicant's medical diagnosis 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 Board found sufficient evidence of an in-service mitigating factor (Length) and concurred with the conclusion of the medical advising official that the applicant's Generalized Anxiety DO (GAD) does mitigate the applicant's DUI. Based on a preponderance of evidence, the Board determined that the reason for the applicant's separation and the character of service the applicant received upon separation were inequitable. 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 Board determined the reentry code was proper and equitable based on the applicant's medical diagnosis and voted not to change it. 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 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 AR20210011188 1