1. Applicant's Name: a. Application Date: 2 June 2022 b. Date Received: 16 June 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 through legal counsel requests an upgrade to honorable, a change from the current separation authority, and a narrative reason change to Secretarial Authority. The applicant seeks relief contending, in effect, that he would like a referral to the appropriated IDES program for evaluation of his PTSD as well as a service characterization upgrade from general (under honorable conditions) to honorable based on the diagnosis for service- connected PTSD along with the guidance provided to the Board by the Hagel memorandum. The applicant contends he suffered from PTSD which affected the decision-making and was not known until after the separation. Subsequent guidance under Kurta provides that members suffering from PTSD should have their case reviewed to determine whether adverse action was appropriate. b. Board Type and Decision: In a records review conducted on 10 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD outweighing the applicant's basis for separation - being drunk and disorderly, and assaulting an armed policeman while resisting apprehension. 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 though the applicant's misconduct is mitigated, the applicant's BH condition is service limiting and thus, the reentry eligibility (RE) code will remain RE-3. Please see Section 10of 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 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 14 March 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 February 2013 (2) Basis for Separation: The applicant was informed of the following reasons: for being drunk and disorderly, and while resisting apprehension, assaulted an armed force policeman on 5 October 2012. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 7 February 2013 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: 22 February 2013 / General Under Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 January 2010 / 3 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 12B1P, Combat Engineer / 3 years, 1 months, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Afghanistan (4 March 2012 to 6 September 2012) f. Awards and Decorations: ACM-CS, ARCOM (though not reflected on the applicant's DD214, the award is reflected in the applicant's AMHRR), AGCM, NDSM, GWOTSM, ASR, NATOMDL, CAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 5 October 2012, which indicates the applicant was the subject of investigation for simple assault on a military law enforcer (Article 128, UCMJ), and conduct unbecoming a member of the military service drunk and disorderly, and obstruction of justice (Article 134, UCMJ) Military Police Report dated 5 October 2012, reflects the applicant was the subject of an investigation for simple assault on military law enforcer. FG Article 15 dated 4 December 2014 for resisting being apprehended by SPC P., an armed force policeman on 5 October 2012, by assaulting the policeman twice with the back of an open hand, one with a closed hand and biting the policeman on the right elbow and right forearm. The punishment consisted of reduction to E-3 (suspended), forfeiture of $500.00 pay, extra duty, and restriction for 45 days, and an oral reprimand. Several counseling states for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): See Below (1) Applicant provided: Report of Medical Examination, dated 16 January 2013, where as the applicant makes reference to insomnia and report of mental status evaluation as noted in j(2) below. (2) AMHRR Listed: Army Substance Abuse Program (ASAP) Enrollment dated 9 October 2012 indicates the applicant was command referred into the program. Report of Mental Status Evaluation, dated 15 January 2013, indicates the applicant screened positive for post traumatic stress disorder and negative for mild traumatic brain injury. It was also noted that these conditions were either not present or, if present did not meet AR 40-501 criteria for a medical evaluation board. Command was advised to consider the influence of these conditions, if present when determining final disposition. It was also noted in the remarks section of the Report of Mental Status Evaluation, that there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. The applicant was mentally responsible, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. The applicant had been fully evaluated in the clinic and there were no diagnoses present that required MEB at that time. The applicant could follow-up in the clinic as needed if the applicant chooses too. The applicant was psychologically cleared for any administrative action deemed appropriate by the separation authority (GCMCA). 5. APPLICANT-PROVIDED EVIDENCE: Exhibits 1-14, to include DD Form 149 in lieu of DD Form 293; legal brief; power of attorney; self-authored letter; enlisted record brief; separation packet; medical documents to include report of mental status evaluation; Hagel Memorandum; application to the Department of Veterans Affairs for claim for service connection for post- traumatic stress disorder (PTSD) and request for VA education benefits to include disapproval letter; power of attorney; and DD Form 214 for the period of service under review. 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 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. RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant through legal counsel requests an upgrade to honorable, a change from the current separation authority, and a narrative reason change to Secretarial Authority. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. Evidence in the record indicates separation action was initiated against the applicant for being drunk and disorderly, and while resisting apprehension, assaulted an armed force policeman. 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 as listed in tables 2-2 or 2-3 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. Evidence submitted by the applicant with his application and that contained in the AMHRR indicates on 15 January 2013, a behavioral health provider, indicates the applicant screened positive for post-traumatic stress disorder and negative for mild traumatic brain injury. It was also noted that these conditions were either not present or, if present did not meet AR 40-501 criteria for a medical evaluation board. Command was advised to consider the influence of these conditions, if present when determining final disposition. It was also noted in the remarks section of the Report of Mental Status Evaluation, that there was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels. The applicant was mentally responsible, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. The applicant had been fully evaluated in the clinic and there were no diagnoses present that required MEB at that time. The applicant could follow-up in the clinic as needed if the applicant chooses too. The applicant was psychologically cleared for any administrative action deemed appropriate by the separation authority (GCMCA). The applicant seeks relief contending he suffered from PTSD which affected his decision- making and was not known until after his separation. Subsequent guidance under Kurta provides that members suffering from PTSD should have their case reviewed to determine whether adverse action was appropriate. 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 argument and statements in support of contentions that counsel provided in written submissions and in support of previously submitted 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. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found VA service connection of the diagnosis of PTSD, establishing that the condition began during active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a BH condition, PTSD, which mitigates some of the misconduct. As there is an association between PTSD and self-medication with alcohol, there is a nexus between the applicant's PTSD condition and offense of being drunk and disorderly. PTSD, however, does not mitigate the offense of physically assaulting a police officer by punching the officer twice and biting the officer on the arm as PTSD does not affect one's ability to distinguish right from wrong and act in accordance with the right. In the BH advisor's opinion, the partial mitigation provided by liberal consideration does not outweigh the totality of the applicant's misconduct. (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 PTSD outweighed the applicant's basis for separation - being drunk and disorderly, and assaulting an armed policeman while resisting apprehension. b. Response to Contention(s): (1) The applicant seeks relief contending suffering from PTSD which affected decision- making and was not known until after the separation. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's aforementioned misconduct. (2) The applicant contends the authority and narrative reason for discharge are inequitable and need to be changed. The Board determined that this contention was valid and voted to upgrade the discharge due to PTSD mitigating the applicant's aforementioned misconduct. (3) The applicant contends a medical discharge would be appropriate given the applicant's PTSD. The Board determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. c. The Board determined the discharge is inequitable based on the applicant's PTSD outweighing the applicant's basis for separation - being drunk and disorderly, and assaulting an armed policeman while resisting apprehension - thus, warranting relief. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD outweighed the applicant's basis for separation - being drunk and disorderly, and assaulting an armed policeman while resisting apprehension. 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 and the applicant's PTSD though mitigating, is service limiting. 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: No Change 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 AR20220009402 1