1. Applicant's Name: a. Application Date: 31 January 2020 b. Date Received: 6 March 2023 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 uncharacterized. The applicant requests, through counsel, an upgrade to honorable, a change to the reentry (RE) code, and separation program designator (SPD) code and a narrative reason change to "Secretarial Authority. The applicant, through counsel seeks relief contending, in effect, the applicant is entitled to the requested relief for the following reasons: The applicant denies engagement in the misconduct at the heart of the separation action. Moreover, the command lacked evidence beyond a reasonable doubt that the applicant engaged in the misconduct alleged in the Article 15, which makes the finding of guilt in that proceeding null and void. The applicant's overall service record and post-service conduct are deserving of an honorable characterization of service. Accordingly, the principles of justice, fairness, and equity require that the applicant's requests be approved. The applicant further details the contentions in an allied self-authored statement provided with the application. b. Board Type and Decision: In a telephonic personal appearance hearing conducted on 8 May 2023, and by a 5-0 vote, the Board denied the request upon finding the characterization of service being both proper and equitable. However, based on the applicant's testimony and service record, the Board determined the narrative reason for the applicant's separation is now improper. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 11, the narrative reason for separation to Entry- Level Performance and Conduct, the separation code to JGA, 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, Chapter 14-12c / JKQ / RE-4 / Uncharacterized b. Date of Discharge: 18 December 2019 c. Separation Facts: The applicant's Army Military Human Resource Record (AMHRR) is void of the case separation file. However, the applicant provided documents which are described below in 3c(1) through (6). (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: The applicant knowingly and with intent to defraud, use a device without authorization between on and about 21 August 2019 and 6 September 2019 to obtain money of a value of about $2,900. (3) Recommended Characterization: Uncharacterized (4) Legal Consultation Date: 27 November 2019 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 July 2019 / 3 years, 28 weeks b. Age at Enlistment / Education / GT Score: 23 / Bachelor's Degree / 111 c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 4 months, 26 days d. Prior Service / Characterizations: NA e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 21 October 2019, for failing to obey a lawful order by wrongfully using a cell phone without permission from the cadre (contraband) between on or about 21 August 2019 and 6 September 2019; and between on or about 21 August 2019 and 6 September 2019, knowingly and with the intent to defraud use a device without authorization to obtain money of a value of about $2,900. The punishment consisted of forfeiture of $512 pay (suspended); extra duty and restriction for 14 days, and an oral reprimand. The applicant indicated guilt of all specification and did not appeal. (Provided by counsel) Law Enforcement Report - Initial - Final, dated 25 September 2019, reflects an investigation established the applicant committed the offense of willingly providing another person with the applicant's bank account information and multiple witnesses state the applicant was aware of the other person's plan to transfer money out of the victim's account into the applicant's account and drawing out $600 out of an ATM that originated from the victim's money. The applicant was apprehended, searched and transported to the Military Police Station where the applicant was advised of legal rights, which the applicant waived, rendering a written sworn statement denying the listed offense. (Provided by counsel) Developmental Counseling Forms, dated 22 October 2019, shows the Soldier was counseled and recommended for separation for misconduct. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Legal Supplemental Statement with all listed enclosures A through D (156 pages of evidence, includes DD Form 214, Enlisted Record Brief, Separation Documents, self-authored declaration). 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), 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 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. Unless the DCS, G-1, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. A Soldier is in an entry-level status (ELS) if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. (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 prescribes 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-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 requests an upgrade to honorable, a change to the RE code, and SPD code and a narrative reason change to "Secretarial Authority. The applicant's AMHRR, the issues, and documents submitted with the application were carefully reviewed. The applicant, through counsel contends, in effect, the narrative reason for the discharge should be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14- 12c, AR 635-200 with a uncharacterized 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, 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, through counsel, contends, in effect, the SPD code should be changed. Separation codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations the SPD code specified by Army Regulations for a discharge under Chapter 14, paragraph 14-12c, is "JKQ." The applicant, through counsel contends, in effect, the RE code should be changed. Soldiers processed for separation are assigned RE codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It merely means that the Soldier has not been in the Army long enough for the character of service to be rated as honorable or otherwise. The applicant was in an ELS at the time of the discharge. The applicant's counsel contends the command lacked evidence beyond a reasonable doubt to support the Company Grade Article 15 on which the separation was based. The applicant's counsel provided evidence of a CG Article 15, dated 21 October 2019, which reflects the applicant failed to obey a lawful order by using a cell phone without permission from the cadre (contraband) between on or about 21 August 2019 and 6 September 2019; and between on or about 21 August 2019 and 6 September 2019, knowingly and with the intent to defraud use a device without authorization to obtain money of a value of about $2,900. The applicant indicated guilt of all specification and did not appeal, and the applicant was punished. The applicant's counsel also provided Memorandum, Subject: Law Enforcement Report- Final XXXXX-2019-MP018044-3M7, dated 25 September 2019, reflects an investigation revealed the applicant willingly provided another person with the applicant's bank account information and multiple witnesses state the applicant was aware of the other person's plan to transfer money out of the victim's account into the applicant's account and drawing out $600 out of an ATM that originated from the victim's money. The applicant's counsel contends, in effect, the applicant's overall service record and post- service conduct are deserving of an honorable characterization of service. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. 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): N/A c. Counsel / Witness(es) / Observer(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. 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? 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's counsel contends the command lacked evidence beyond a reasonable doubt to support the Company Grade Article 15 on which the separation was based. The Board considered this contention and found sufficient evidence to support that applicant by wrongfully used a cell phone without permission from the cadre. However, the Board found that a change to the narrative reason to Entry-Level Performance and Conduct will reflect the misconduct more accurately. (2) The applicant's counsel contends, in effect, the applicant's overall service record and post-service conduct are deserving of an honorable characterization of service. The Board considered this contention and determined in accordance with AR 635-200 that, based on the applicant's official record, applicant was separated while in an entry level status and an UNC is the proper characterization of service except when the DCS, G-1 determines that an HD is warranted based on unusual circumstances involving personal conduct and performance of duty, which is not applicable in this case. Therefore, no change is warranted. c. The Board denied the request upon finding the characterization of service being both proper and equitable. However, based on the applicant's testimony and service record, the Board determined the narrative reason for the applicant's separation is now improper. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 11, the narrative reason for separation to Entry-Level Performance and Conduct, the separation code to JGA, and the reentry code to RE-3. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because applicant was separated while in an entry level status and an UNC is the proper characterization of service except when the DCS, G-1 determines that an HD is warranted based on unusual circumstances involving personal conduct and performance of duty, which is not applicable in this case. (2) The Board voted to change the reason for discharge to Entry-Level Performance and Conduct to reflect applicant's misconduct more accurately in light of applicant being new to the Army, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JGA. (3) The RE code will change to RE-3. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason / SPD Code to: Entry-Level Performance and Conduct / JGA d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 11 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 AR20230004216 1