1. Applicant's Name: a. Application Date: 20 April 2022 b. Date Received: 16 May 2022 c. Counsel: 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, through counsel, an upgrade to honorable along with a narrative reason and (RE) code change. The applicant's counsel seeks relief contending, in effect, the applicant's undiagnosed and untreated post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) impaired the applicant's ability to serve satisfactorily and these mental health conditions mitigate the applicant's misconduct and outweigh the discharge. The applicant was self-medicating with alcohol to combat PTSD symptoms, which the applicant was unaware of at the time. Two months after the applicant's discharge, the Department of Veteran Affairs (VA) concluded the applicant had a positive screen for PTSD and depression. Had the applicant served under today's policies, the enhancement of the applicant's rights around screening and standards would have resulted in a proper diagnosis, creating substantial doubt the discharge would have been the same. The applicant's misconduct does not reflect the entirety of the applicant's service and character as demonstrated by the applicant's combat service and awards received. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 3 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD mitigating the alcohol offenses and disobedience, and the time elapsed since discharge and applicant's length and quality of service, to include combat service, outweighing the remaining offense of being found naked in bed with someone who was not the spouse. 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, and the reentry code to RE-3. Please see Section 10 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: 25 April 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: 24 March 2014 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant disobeyed a lawful order from a commissioned officer and consumed alcohol on 12 January 2014 while on Red Cycle. The applicant became so intoxicated and was unable to perform duties as a Soldier and did not report when a recall order was given. When the applicant was finally found by another Soldier, the applicant was found naked in bed with a person who was not the applicant's spouse. The applicant was also found drunk in duty on 10 September 2013 while at the Joint Readiness Training Center at Fort Polk, Louisiana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 31 March 2014 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 April 2014 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 January 2011 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 3 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (1 April 2012 - 1 December 2012) f. Awards and Decorations: ACM-CS, ARCOM, NDSM, GWOTSM, ASR, NATO MDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 23 October 2013, reflects the applicant was found drunk on duty on or about 1 September 2013. The punishment consisted of reduction to private first class/E-3; forfeiture of $300 pay; extra duty for 45 days; restriction for 45 days, suspended, to be automatically remitted if not vacated before 21 April 2014. FG Article dated, 3 April 2014, reflects the applicant disobeyed a lawful order issued by a commissioned officer on or about 12 January 2014; on or about 12 January 2014, as a result of wrongful previous overindulgence in intoxicating liquor, the applicant was incapacitated for the proper performance of duties; and on or about 12 January 2014, the applicant was found naked in bed with an unknown person who was not the applicant's spouse. The punishment consisted of reduction to private/E2-; forfeiture of $858 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 2 July 2014; and extra duty and restriction for 45 days. A Report of Mental status Evaluation (MSE), dated 4 February 2014, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant had a negative screen for both PTSD and mild TBI. The applicant received several Developmental Counseling Form for various acts of misconduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: The applicant's counsel provides the applicant's VA medical records supporting a PTSD and depression diagnosis. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Counsel's Brief, VA medical records, Guidance memorandums on liberal guidance, military award documents, applicant VA statement, letters of support 6. POST SERVICE ACCOMPLISHMENTS: The applicant completed a 14-week volunteer program and volunteers time with local prisons to work with inmates and them with rehabilitation. 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) 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) 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. (5) 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. (6) 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: 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. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests, through counsel, an upgrade to honorable along with a narrative reason and RE code change. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's counsel requests the applicant's narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant's counsel requests the applicant's RE code be changed. The applicant was separated under the provisions AR 635-200, chapter 14, paragraph 12c, due to misconduct (serious offense), with an uncharacterized discharge and a RE code of "3." Army Regulation 601-210 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. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1 defines reentry eligibility (RE) codes. 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. The applicant's counsel contends the applicant's undiagnosed and untreated PTSD and TBI impaired the applicant's ability to serve satisfactorily, and these mental health conditions mitigates the applicant's misconduct and outweighs the discharge. The applicant's AMHRR contains no documentation of PTSD or any mental health diagnosis. The AMHRR shows the applicant underwent a MSE on 4 February 2014, which reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant had a negative screen for both PTSD and mild TBI. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant's counsel provides the applicant's VA medical records which supports both a PTSD and depression diagnosis. The applicant's counsel contends had the applicant served under today's policies the enhancement of the applicant's rights around screening and standards would have resulted in a proper diagnosis, creating substantial doubt the discharge would have been the same. Two months after the applicant's discharge, VA concluded the applicant had a positive screen for PTSD and depression. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's counsel contends the applicant's misconduct does not reflect the entirety of the applicant's service and character as demonstrated by the applicant's combat service and awards received. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant's counsel contends the applicant was self-medicating with alcohol due to combat PTSD symptoms, which the applicant was unaware of at the time. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant's counsel states the applicant completed a 14-week volunteer program and volunteers time with local prisons to work with inmates and them with rehabilitation. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence c. Counsel / Witness(es) / Observer(s): 10. 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. 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: the applicant held in- service diagnoses of Adjustment Disorder and Alcohol Dependence. Post-service, the applicant is service-connected for PTSD, with additional diagnoses of Alcohol Use Disorder, Cannabis Use Disorder, Cocaine Use Disorder, ADHD, TBI, and Major Depressive Disorder (MDD). (2) Did the condition exist or experience occur during military service? Yes. Applicant was diagnosed in-service with Adjustment Disorder and applicant is 100% service-connected for PTSD. There is no evidence of a TBI including numerous denials by the applicant. However, there is evidence of an instance of the applicant exaggerating on a questionnaire on which the fully-functioning applicant scored worse than hospitalized, advanced elderly dementia patients - raising validity concerns over a TBI consideration. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and difficulty with authority and substance use, the basis for separation is partially mitigated; disobeying an order, consuming alcohol, being intoxicated and unable to perform duties, and drunk of duty specifically can be linked to PTSD reactions. However, being found naked with a person not the spouse is not mitigated as this is unrelated to trauma. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's Adjustment Disorder or PTSD outweighed the unmitigated misconduct of being found naked with a person not the spouse is not mitigated as this is unrelated to trauma. b. Response to Contention(s): (1) The applicant's counsel contends the applicant's undiagnosed and untreated PTSD and TBI impaired the applicant's ability to serve satisfactorily, and these mental health conditions mitigate the applicant's misconduct and outweigh the discharge. The Board considered this contention and determined that the applicant's PTSD mitigated most the the applicant's misconduct as outlined above in Section 9a(3). However, the Board did not take the applicant's questionable TBI assertion into account as there is evidence of exaggeration symptoms found in medical records since the fully-functioning applicant scored worse than hospitalized, advanced elderly dementia patients - raising validity concerns over a TBI claim. However, the Board did grant relief based on the partial PTSD mitigation in addition to the totality of the applicant's service record. (2) The applicant's counsel contends the applicant's misconduct does not reflect the entirety of the applicant's service and character as demonstrated by the applicant's combat service and awards received. The Board considered this contention and determined that relief was warranted as the totality of the applicant's service record outweighed the misconduct which was not medically mitigated by the applicant's PTSD. (3) The applicant's counsel contends the applicant had the applicant served under today's policies the enhancement of the applicant's rights around screening and standards would have resulted in a proper diagnosis, creating substantial doubt the discharge would have been the same. The Board considered this contention and determined that relief was warranted not based on adaptations to today's standards, but rather application of medical mitigation and the nexus between certain elements of the applicant's misconduct and PTSD reactions. c. The Board determined the discharge is inequitable based on the applicant's PTSD mitigating the alcohol offenses and disobedience, and the time elapsed since discharge and applicant's length and quality of service, to include combat service, outweighing the remaining offense of being found naked in bed with someone who was not the spouse. 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, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigating the alcohol offenses and disobedience, and the time elapsed since discharge and applicant's length and quality of service, to include combat service, outweighing the remaining offense of being found naked in bed with someone who was not the spouse. 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 Board voted to change the RE code to RE-3. 11. 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: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20220007719 1