1. Applicant's Name: a. Application Date: 22 December 2021 b. Date Received: 22 December 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable, change in their separation code, reentry code and their narrative reason for separation. (2) The applicant seeks relief stating they believe their discharge was unfair in the way that they got separated too fast when there were other service members who committed the same offense, and they were not discharged. They take full responsibility for their actions, but it was unfair for their unit to single them out. (3) Their unit never took into consideration of what their accomplishments were, and they would appreciate if the Board would consider their military record, awards, and their accomplishments. b. Board Type and Decision: In a records review conducted on 15 December 2023 and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Post Traumatic Stress Disorder diagnoses). 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 RE code was proper and equitable and voted not to change it. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 August 2021 c. Separation Facts: (1) Date of Notification of Intent to Separate: on or before 6 July 2021 when applicant acknowledged receipt (2) Basis for Separation: operated a vehicle while intoxicated and failed to obey a lawful general order by leaving Fort Bliss after curfew hours. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 May 2019 / 4 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: Specialist/E-4 / 11B10, Infantryman / 5 years, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (26 January 2017 - 6 October 2017) f. Awards and Decorations: ARCOM-C, ARCOM, AAM, NDSM, GWTSM, ACM-CS, HSM, ASR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 30 June 2020, reflects the applicant received nonjudicial punishment for having knowledge of a lawful order, an order which was their duty to obey, did, at or near Fort Bliss, TX, on or about 30 May 2020, failed to obey the same by wrongfully leaving Fort Bliss, TX after curfew hours. Their punishment consisted of a reduction to private first class/E-3 and extra duty and restriction for 30 days. (2) On 25 March 2021, the commanding general, Headquarters, 1st Armored Division and Fort Bliss, reprimanded the applicant in writing for driving while intoxicated. On 14 February 2021, a police officer found the applicant asleep at the wheel. The police officer detected a strong odor of an unknown alcoholic beverage emanating from the applicant and along with slurred speech and bloodshot eyes. A breathalyzer test confirmed a blood alcohol content of 0.132. (3) A memorandum, Bravo Company, 1st Battalion, 36th Infantry Regiment, subject: Commander Recommendation of Filing Determination, dated 12 April 2021, the company commander recommended permanently filing the general officer memorandum of reprimand (GOMOR) in the applicant's Army Military Human Resource Record (AMHRR). The company commander states the applicant is not adapting well to the Army's way of life and is struggling to uphold the Army Values. The applicant did participate in the Army Substance Abuse Program (ASAP) and their next Substance Use Disorder Clinical Care appointment date is 21 April 2021. (4) A memorandum, 1st Battalion, 36th Infantry Regiment, subject: Commander Recommendation of Filing Determination, dated 19 April 2021, the battalion commander recommended permanently filing the GOMOR in the applicant's AMHRR. The battalion commander states this is the second serious discipline problem that has occurred with this Solider. [Applicant] is a hard worker and not a bad person but struggles with doing the right thing when not directly supervised. Not mature enough for future service. (5) On 7 May 2021, having carefully considered the GOMOR, the circumstances of the misconduct, and all matters submitted by the Soldier in defense, extenuation, or mitigation, if any, along with recommendations of subordinate commanders, directed the GOMOR be placed permanently in the applicant's AMHRR. (6) A memorandum, Bravo Company, 1st Battalion, 36th Infantry Regiment, subject: Separation under Army Regulation 635-200, Paragraph 14-12c, (Commission of Serious Offense) [Applicant], undated, the applicant's company commander notified the applicant of their intent to separate them under the provisions of Army Regulation 635-200, Chapter 14-12c, for operating a vehicle while intoxicated and failure to obey a lawful general order by leaving Fort Bliss after curfew hours, with a recommended characterization of service of general (under honorable conditions). On 6 July 2021 the applicant acknowledged the basis for the separation and of the right available to them. (7) A DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 August 2021, shows in: * item 4a (Grade, Rate or Rank) - Private First Class * item 4b (Pay Grade) - E-3 * item 12c (Net Active Service This Period) - 5 years, 20 days * item 12i (Effective Date of Pay Grade) - 30 June 2020 * item 18 (Remarks) - in part, CONTINUOUS HONORABLE ACTIVE SERVICE - 20160111 - 20190530 * item 24 (Character of Service) - General (Under Honorable Conditions) * item 25 (Separation Authority) - Army Regulation 635-200, Paragraph 14-12c * item 26 (Separation Code) - JKQ [Misconduct, Commission of a Serious Offense] * item 27 (Reentry Code) - 3 * item 28 (Narrative Reason for Separation) - Misconduct, (Serious Offense) (8) The Enlisted Record Brief, dated 23 August 2021, reflects the applicant was advanced to the rank of specialist/E-4 on 1 August 2018, was later reduced to the rank of private first class/E-3 on 30 June 2020. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): NIF 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), with personal statement * On 1 July 2022, Army Review Boards Agency requested from the applicant their discharge packet, in which the applicant provided - * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), with allied documents * GOMOR packet, with allied documents, from their AMHRR * Case Files for Approved Separation from their AMHRR * Enlisted Record Brief * County Criminal Court documents, reflecting the applicant's participation and completion of the Pre-Trial Diversion Program, with the expungement of their criminal record of the offense of Driving While Intoxicated * DD Form 214 * Department of Veterans Affairs letter, reflecting the applicant's summary of benefits with a combined service-connected evaluation of 90-percent 6. POST SERVICE ACCOMPLISHMENTS: None submitted with application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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, Title 10 U.S. Code, Section 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 (DoD) 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) 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; Title 10 U.S. Code; Section 1553 and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes policies and standards to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. It prescribes the policies, procedures, authority for separation of Soldiers, and the general provisions governing the separation of Soldiers before ETS or fulfillment of active duty obligation to meet the needs of the Army and its Soldiers. (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) A Under Other Than Honorable Conditions Discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence 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. Paragraph 14-12c (Commission of a Service Offense), stated 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 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 DoD Instruction 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. 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. 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 mission. Unit commanders must intervene early and refer all Soldiers suspected or identified as alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier's potential for continued military service in terms of professional skills, behavior, and potential for advancement. 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 that agency. 8. SUMMARY OF FACT(S): a. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. A review of the available evidence provides the applicant received nonjudicial punishment for failing to obey a lawful order by wrongfully leaving Fort Bliss after curfew hours and received a GOMOR for driving while intoxicated. The review additional reflects an administrative irregularity in the proper retention of records, specifically the AMHRR is void of their complete case files for approved separation, except for their Notification of Separation memorandum, notifying the applicant of the intent of their separation with a general (under honorable conditions) character of service. Notwithstanding the absence of records, the DD Form 214, signed by the applicant, provides the applicant was discharged with a character of service of general (under honorable conditions) for misconduct (serious offense) rather than a discharge under other than honorable conditions, which is normally considered appropriate. They completed 3 year, 7months, and 22 days of their contractual obligation. 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 DoD 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 diagnosis: Post-Traumatic Stress Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The trauma serving as the basis for separation occurred in-service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and substance use, the basis is mitigated. (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 Post-Traumatic Stress Disorder outweighed the operating a vehicle while intoxicated and failing to obey a lawful general order basis for separation for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends they believe their discharge was unfair in the way that they got separated too fast when there were other service members who committed the same offense, and they were not discharged. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder fully outweighing the applicant's operating a vehicle while intoxicated and failing to obey a lawful general order basis for separation. (2) The applicant contends their unit never took into consideration of what their accomplishments were, and they would appreciate if the Board would consider their military record, awards, and their accomplishments. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's Post-Traumatic Stress Disorder fully outweighing the applicant's operating a vehicle while intoxicated and failing to obey a lawful general order basis for separation. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Post Traumatic Stress Disorder). 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 RE 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 because the applicant's Post-Traumatic Stress Disorder mitigated the applicant's misconduct of operating a vehicle while intoxicated and failing to obey a lawful general order. 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 / Separation Order: 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 AR20220002162 1