1. Applicant's Name: a. Application Date: 9 December 2020 b. Date Received: 25 March 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, that his discharge was inequitable because his Article 15 was based on an Army policy regarding storage of M4 weapons that he was not aware of since it came out during his MP Training and he was never apprised of the rule and had not read the said document. Additionally, the applicant contends he served over 7 years and 9 months of exemplary service before being charged with an Article 15 violation. The applicant received two Army Good Conduct Medals, the Professional Development Ribbon, and the Army Commendation Medal during his over 7 years of creditable service. He was also awarded the Military Outstanding Volunteer Service Medal. In a records review conducted on 20 October 2021, 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, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 12 May 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: On 9 March 2020, the separation authority having reviewed the administrative separation proceedings, to include the conditional waiver, dated 28 January 2020, pertaining to the applicant, the applicant's conditional waiver was denied. The separation authority referred the applicant's case to an administrative separation board to determine whether the applicant should be separated from the United States Army under the provisions of AR 635-200, Chapter 14-12c, Commission of a Serious Offense, and whether the applicant should be issued an Honorable, General (Under Honorable Conditions) or Under Other than Honorable Conditions discharge certificate. (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 27 April 2020 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 May 2016 / 4 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-5 / 31B10, Military Police / 7 years, 9 months d. Prior Service / Characterizations: RA, 13 August 2012 to 22 May 2016 / HD e. Overseas Service / Combat Service: Germany / None f. Awards and Decorations: AAM, AGCM-2, NDSM, GWOTEM, GWOTSM, NOPDR, ASR, OSR-2, MOVSM g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 8 May 2018, for disobeying a lawful order issued by LTC W.M.B., by wrongfully not securing his M4 in the locking mechanism in the trunk of his patrol car, out of public view on 23 January 2019. The punishment consisted of reduction to E-4, extra duty for 14 days, and an oral reprimand. Memorandum for Record, dated 9 November 2018, reference USAG Bavaria DES Standard Operating Procedures for M4 Carbine requirements. Counseling statements reference violation of Policy Letter #14, Driver and Truck Commander Responsibilities and initiation of a flagging action. i. Lost Time / Mode of Return: NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293;11 letters of character; and memorandum, dated 14 November 2019, reference Matters for Consideration in the Article 15 Proceedings against the applicant. 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 Service-member discharged from active military service within 15 years of the Service-member'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 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: 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. DISCUSSION 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. The applicant's available record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct (serious offense), with a characterization of service of general (under honorable conditions). Barring evidence to the contrary, it appears all the requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant seeks relief contending that his discharge was inequitable because his Article 15 was based on an Army policy regarding storage of M4 weapons that he was not aware of since it came out during his MP Training and he was never apprised of the rule and had not read the said document. Additionally, the applicant contends he served over 7 years and 9 months of exemplary service before being charged with an Article 15 violation. The applicant received two Army Good Conduct Medals, the Professional Development Ribbon, and the Army Commendation Medal during his over 7 years of creditable service. He was also awarded the Military Outstanding Volunteer Service Medal. The applicant's contentions were noted and the applicant is to be commended on his in-service accomplishments. However, it should be noted; it is unknown if these contentions have merit because the complete facts and circumstances leading to the discharge are not contained in the service record. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the discharge packet is not available in the official record. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed DoD and VA medical records and found the applicant was diagnosed with Adjustment Disorder by the military, and is service connected by the VA for Anxiety Disorder which, in the opinion of the Board's Medical Advisor could potentially mitigate the misconduct which led to separation from the Army. (2) Did the condition exist or experience occur during military service? Yes. Review of the VA medical records indicate that the Adjustment Disorder and Anxiety Disorder which could mitigate the basis for discharge, occurred during military service, and has service-connected the applicant. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While the applicant was diagnosed with Adjustment Disorder while on active duty and has been service-connected by the VA for Anxiety Disorder, neither of these conditions mitigate his misconduct of making a false official statement or failing to obey an order. Neither condition affects one's ability to distinguish wrong from right and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? (NO) Despite the ADRB's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the applicant's failure to obey a lawful order and making a false official statement outweighed the applicant's Adjustment Disorder and Anxiety Disorder for the reasons listed in (3) above. b. The applicant requests an upgrade to an honorable discharge, and contends he was not aware of the Army policy which he received a FG Art 15. He failed to obey a lawful order by not securing his weapon in accordance with Army and unit policies and gave a false official statement. Although, the results of the separation Board are not in the records, the Board considered his length and quality of service. The applicant did not provide any evidence supporting the basis for separation or mitigating circumstances for the Board to consider. 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 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, the applicant's Adjustment Disorder and Anxiety Disorder did not mitigate the offenses of failing to obey a lawful order and making a false official statement. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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, and 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 AR20210011772 3