1. Applicant's Name: a. Application Date: 26 July 2020 b. Date Received: 13 September 2021 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 General (Under Honorable Conditions). The applicant requests an Honorable. b. The applicant seeks relief contending, their discharge was inequitable since they were discharged for one single offense, they did not receive further counseling and was never offered a causal transfer. The characterization of their military life has no reflection on their civilian life as they are an upstanding citizen with no criminal record and able to maintain a job with no need for disciplinary actions. Moreover, they are receiving 80 percent service-connected disability compensation from Veterans Affairs (VA), due to their injuries from their military service. Upgrading them to an Honorable would allow them to further their education and better the lives of them and their family, by obtaining a career that is suitable to their injuries. They were proud to have served but did so when they were young and made mistakes. c. Board Type and Decision: In a records review conducted on 13 December 2023, and by a 5-0 vote, the Board determined that the discharge was too harsh based on the applicant's youth, one time misconduct and elapsed time since the incident and as a result it is inequitable. Accordingly, 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, 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 and voted not to change it. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 25 July 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 9 June 2011 (2) Basis for Separation: Twice on 11 January 2011, they failed to obey direct orders from their Non-Commissioned Officer (NCO). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 June 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 22 June 2011 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 July 2009 / 3 years and 27 weeks b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-2 / 91B1O Wheeled Vehicle Mechanic / 1 year and 6 months d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: NA f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) On 24 April 2009, the applicant enlisted at 18 years old, in the United States Army Reserve's Delayed Entry Program; on 27 July 2009, they enlisted in the Regular Army for 3 years and 27 weeks as an PVT. (2) The Enlisted Record Brief provides the applicant was promoted to PV2 on 1 January 2010. They were flagged, Suspend Favorable Personnel Actions (FLAG) for the following: * On 12 January 2011 for Adverse Action (AA) * On 1 March 2011 for Army Body Composition Program (KA) * On 12 March 2011 for Army Combat Fitness Test Failure (JA) * On 15 March 2011 for Field-Initiated Involuntary Separation (BA) (3) On 11 January 2011, SGT (team leader) counseled the applicant for failure to obey, disrespect towards an NCO, and failure to report. (a) At 0930 hours, SGT told the applicant to perform maintenance on an assigned piece of equipment while the SGT sought resolution to a situation the applicant was having. SGT returned around 1000 and the applicant was still sitting in the office. SGT asked the applicant what they were doing and who told them to do it and the applicant replied they took it upon themselves to print leave and earning statements (LES's) since no one ever helps them with anything. SGT explained they was assisting the applicant in the matter and explained to the applicant, as a junior enlisted Soldier, the applicant is required to execute, when given a lawful order. SGT advised them to complete their assigned task, but the applicant insisted they needed to see the Chaplain. SGT told the applicant they would have allowed them to see the Chaplain later within the day and to do as they are told; however, the applicant became argumentative and went anyway, stating they cannot deny them their right to see the Chaplain. SGT followed them as they walked away, directing them to work. The applicant was later directed to go back to work by SFC. The applicant agreed with the counseling and elected not to add remarks. (b) On 11 January 2011, SGT counseled the applicant for failing to sign the section's sign in sheet at 1250hrs. Beginning on 7 January 2011, all of the section's junior enlisted Soldiers, including the applicant, were instructed to sign in beginning at 0610, 0845, and 1250 hours, ensuring everyone had a complete understanding of signing in and why they were being instructed to sign in. This was their first violation, and they should strive to make it their last, stating future occurrences will result in extensive punitive action or punishments under UCMJ. As a result, they were instructed to sign in 5 minutes prior to the times already outlined, inform SGT or another NCO, if they were not present. The applicant agreed and elected not to provide a statement. A continuation of this counseling provides on 13 January 2011, they were counseled on the above and recommended for punishment under the UCMJ. The applicant agreed and elected not to provide a statement. The Plan of Action stated corrective training will start on 18 January 2011 and end on 21 January 2011. (4) On 27 January 2011, the applicant accepted nonjudicial punishment (NJP) in violation of Article 92 with two specifications, for failing to obey a lawful order given by SGT, their team leader, on 11 January 2011, to perform maintenance on an assigned piece of equipment and for going to see the Chaplain when they were ordered to do so at a later time. The applicant provided they were guilty of all specifications and elected to appeal with no additional matters submitted. The punishment imposed was forfeiture of $383, suspended, to be automatically remitted if not vacated before 27 April 2011; extra duty for 14 days; restriction to the limits of the limits of Fort Carson for 14 days; oral reprimand. (5) On 1 April 2011, the applicant received a medical examination at Fort Carson Physical Exam Center, CO, noted left knee pain with no recommendations and marked them qualified for service with a profile factor of P-1, U-1, L-3, H-1, E-1, S-1. (6) The same day, a Report of Medical History and Medical Assessment, provides answers for their "Yes" questions: been on and off profile for over a year since they were in physical therapy; been using knee brace, given to them by their Physician's Assistant; kidney stone removed at 16 years old and have been hospitalized for ovarian cysts; received counseling from 14 to 17 years old; E.R. for their tonsils, ovarian cysts, and breathing problems; tonsils removed at 19 years old; recently to have their knee scoped; they were not referred for further evaluation. (7) On 9 June 2011, the company commander notified the applicant of their intent to separate them under the provisions of AR 635-200, Chapter 14-12c, Misconduct (Serious Offense) and recommended a General (Under Honorable Conditions) characterization of service. The same day, the applicant acknowledged receipt of the separation notice, elected, and consulted with defense counsel. (8) On 13 June 2011, the battalion commander concurred with the recommendation to separate the applicant with a General (Under Honorable Conditions) characterization of service. (9) On 22 June 2011, the separation approval authority approved the discharge with a General (Under Honorable Conditions) characterization of service. (10) A DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant was discharged accordingly on 25 July 2011, with 1 year, 11 months, and 29 days of active service. The applicant has not completed their first full term of service. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: On 26 July 2020, the applicant provided a VA Summary of Benefits, which provides they have a service-connected disability with an 80 percent rating; however, the letter does not include the diagnoses/disabilities for the applicant. (2) AMHRR Listed: On 1 April 2011, the applicant completed their mental status evaluation with the Psychologist at the Evans Army Community Hospital (EACH), Fort Carson, CO for their separation; their behavior was normal and fully alert and oriented with an unremarkable mood; their thinking process was clear and thought content normal, with good memory. The Psychologist noted although they were suffering from occupational problems, they had no behavioral health concerns and deemed mentally responsible, with the capacity to understand and participate in the proceedings. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge); Veterans Affairs (VA) Summary of Benefits Letter 6. POST SERVICE ACCOMPLISHMENTS: The applicant states they are an upstanding citizen with no criminal record, able to hold jobs with no need for disciplinary action, and have been awarded 80 percent service-connected disability compensation by the VA. 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) 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) 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. 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. 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. (5) 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 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 14-12c, 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: (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. g. Manual for Courts-Martial (2008 Edition), United States, states military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good orders and discipline in the Armed Forces. Article 92 (failure to obey order) states in subparagraph the maximum punishment consists of a bad conduct discharge, forfeiture of all pay and allowances per month, and confinement for 6 months. h. Title 38, U.S. Code, Sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered, medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by the agency. 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. b. A review of the available evidence provides the applicant enlisted in the RA at 18 years old as a PVT. They promoted to PV2 and served 1 year, 5 months, and 14 days prior to their misconduct. (1) The applicant accepted NJP for failing to obey orders from their NCO in January 2011; they received 14 days of restriction and extra duty and was processed for separation IAW AR 635-200, Chapter 14-12c, Misconduct (Serious Offense). They elected and consulted with their defense counsel. (2) They received a separation physical and a mental status evaluation determining the applicant was qualified for service and cleared for separation. The applicant was discharged with a General (Under Honorable Conditions) characterization of service and completed 1 year, 11 months, and 29 days of their 3 year and 27-week contractual obligation. The applicant provided their VA Summary of Benefits which indicates they are 80 percent service-connected; however, their diagnoses/disabilities are not provided. c. Chapter 14 establishes policy and prescribes procedures for separation members 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. d. 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 is 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? No. The Board's Medical Advisor, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused, or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contention(s): (1) The applicant seeks relief contending, their discharge was inequitable since they were only discharged for one single offense, they did not receive further counseling and was never offered a causal transfer. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's youth, one time misconduct and elapsed time since the incident. (2) The applicant contends the characterization of their military life has no reflection on their civilian life as they are an upstanding citizen with no criminal record and able to maintain a job with no need for disciplinary actions. The Board recognizes and appreciates the applicant's post service accomplishments and considered this contention during board proceedings along with the totality of the applicant's service record (3) The applicant contends they are receiving 80 percent service-connected disability compensation from Veterans Affairs (VA), due to their injuries from their military service. The Board liberally considered all of the applicant's medical conditions but found those potentially mitigating behavioral health conditions did not outweigh the basis for applicant's separation. However, the Board voted to grant relief due to the applicant's youth, one time misconduct and elapsed time since the incident. (4) The applicant contends upgrading them to an Honorable would allow them to further their education and better the lives of them and their family, by obtaining a career that is suitable to their injuries. They were proud to have served but did so when they were young and made mistakes. The Board considered this contention and determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined that the discharge was too harsh based on the applicant's youth, one time misconduct and elapsed time since the incident and as a result it is inequitable. Accordingly, 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, 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 and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's youth, one time misconduct and elapsed time since the incident. The Board determined the discharge was inequitable and too harsh, 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. 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 AR20220000308 1