1. Applicant's Name: a. Application Date: 20 September 2017 b. Date Received: 20 September 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. Of note, this case was remanded by the US District Court, District of Connecticut to the Army Board for Correction of Military Records on 19 September 2017. However, on further clarification, the case was remanded back to the Army Discharge Review Board (ADRB) for review. The ADRB considered this case, first in a records review in 2010, and then in a personal appearance hearing in 2015. The applicant seeks relief contending, in effect, he had a proven record of excellence during his time in service. His misconduct was an isolated incident and he had other behavior health issues. His PTSD and depression contributed to his actions and the poor availability of mental health resources at his unit. His higher level enlisted leadership displayed hostility toward the Soldiers who had mental health treatment and made targets out of them, encouraging junior enlisted Soldiers to avoid them and not to trust them. He went AWOL to attend his wedding because he was conflicted between his unit and his family; felt hopeless and was sure that he would lose his wife and home. After returning from Iraq he began to self- medicate with alcohol due to self- isolation, anxiety, self- mutilation and suicidal thoughts. He writes that his company commander requested a BH evaluation and the Dr. recommended that he receive a 5-17 discharge. Applicant states that the BN CSM thought a rehab transfer was a better course of action. So applicant was transferred to a new company, but received no treatment other than medication. He was told he had a choice to either deploy with the new company without receiving treatment or get the treatment he needed by accepting a general discharge. Eventually he was granted a 30 percent disabling rating from the VA. He earned a BS degree; earned admission to a highly selective graduate program in Biophysical Chemistry. Per the Board's Medical Officer, based on the information available for review at the time, case files, AHLTA and JLV were reviewed. AHLTA indicates applicant was diagnosed with Depression while on active duty. Review of AHLTA indicates that the applicant first presented to Behavioral Health (BH) after returning from AWOL. According to the June 2009 BH intake note, the applicant reported he first sought out mental health services in the civilian sector in Nov 2008. He reported that, in 2008, after returning from his OIF deployment, he began feeling anxious and depressed several times a day. During the course of treatment with this civilian provider, he was diagnosed with Borderline Personality Disorder. At the time of his military BH evaluation, the applicant was diagnosed with Depressive Disorder Not Otherwise Specified. He reported depression, insomnia, decreased motivation and low energy. He denied history of TBI (traumatic brain injury) or LOC (loss of consciousness). The examining psychiatrist recommended to command that the applicant be separated with a Chapter 5-17 discharge but his command instead opted to separate the applicant with a Chapter 14-12c discharge instead. While awaiting separation, the applicant continued to be followed by BH. In June 2009, he reported insomnia, anxiety and fear of hitting bumps or potholes in the road due to his intense fear of IEDs. He also reported having "stressful dreams" and some intermittent suicidal ideation. To treat these symptoms, he was prescribed an antidepressant medication and diagnosed with Depressive Disorder NOS, moderately severe. Review of the VA records indicates that the applicant is 60% service connected, 50% of which is for PTSD related to combat. The VA records indicate that the applicant was exposed to several stressful combat situations. As a convoy driver during the first 2 months of his tour in Iraq, his convoy struck IEDs at least 6 times with the applicant stating he was in fear of for his life. Several months later, while in Mosul, the applicant was placed in a task force involved in intercepting and interrupting supply lines to the insurgents. He reported that, during the course of chasing the trucks involved in these supply lines, he witnessed one enemy combatant step out of his vehicle and detonate his suicide vest, incinerating the man, the vehicle and the 4 people in the vehicle. The VA examiner diagnosed the applicant with 1) Post Traumatic Stress Disorder, Chronic and Moderately Severe with significant depressive symptoms and 2) Alcohol Abuse in significant remission for 18 months. While not diagnosed with PTSD while on active duty, the medical record does document the presence of some PTSD symptoms: insomnia, anxiety, hypervigilance, "stressful" dreams and intrusive recollections of trauma (as evidenced by his intense fear of potholes which reminded him of IEDs). Based on the available documentation, it is the opinion of the Agency psychiatrist that the applicant has a mitigating Behavioral Health condition, PTSD. As PTSD is associated with avoidance behaviors, there is a nexus between his PTSD and his offense of going AWOL. In a records review conducted at Arlington, VA on 14 March 2018, and by a 5-0 vote, the Board determined the discharge characterization is inequitable based on the applicant's length and quality of service, to include combat service, post-service accomplishments, the circumstances surrounding the AWOL (i.e. in-service diagnosis of OBH (Depression) and post-service diagnosis of PTSD with a VA 50%, combat-related disability rating). The psychiatrist sitting as a Board member identified a nexus between the applicant's PTSD and his misconduct. Applying liberal consideration of the PTSD as directed by 10 U.S.C. § 1553 and other authorities, the Board determined relief is warranted. Therefore, the board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (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: 27 July 2009 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 2 July 2009 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; being AWOL (12 May 2009 until 26 May 2009) (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 July 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 9 July 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 May 2006 / 4 years, 19 weeks b. Age at Enlistment / Education / GT Score: 19 years / 14 years / 142 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 3 years, 1 month, 26 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, 5 June 2008 to 21 July 2008 f. Awards and Decorations: ARCOM, AAM, NDSM, ICM-CS, GWOTSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 29 June 2009, for being AWOL (12 May 2009 until 26 May 2009); reduction to PFC / E-3, forfeiture of $929 pay for two months (suspended), extra duty and restriction for 45 days. i. Lost Time / Mode of Return: The applicant was AWOL for 14 days (12 May 2009 until 26 May 2009); returned to the unit. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 4 June 2009, indicates the applicant had an Axis I diagnosis of a depressive disorder, not otherwise specified. He met the retentions requirements of Chapter 3, AR 40-501 and did not require a MEB. The applicant indicated he sought mental health services in the civilian sector for anxiety and depression but was ultimately diagnosed with borderline personality disorder. At the time, he exhibited symptoms of depression but did not meet full criteria for personality disorder. Nonetheless, current symptoms, poor judgment, and recent behavior place him, his unit, and his command at significant risk. Therefore, administrative separation in accordance with AR 635-200, Chapter 5-17 was recommended. He was evaluated for PTSD and mTBI and did not meet criteria for either diagnosis at that time. VA rating decision, dated 10 August 2011, relates that the applicant had an evaluation of PTSD with depressive symptoms (formerly major depressive disorder with insomnia), which he received a 30 percent disabling rating, which was increased to 50 percent, effective 28 July 2009. 5. APPLICANT-PROVIDED EVIDENCE: An online application (six pages); a self-authored statement; copy of report of behavioral health evaluation; letter from T.D, LICSW, reference the applicant's evaluation for PTSD; certification of vital record from the Department of Public Health; a Department of Veterans Affairs rating decision; University of Massachusetts, BS Degree and five support statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states in his application he received a BS degree; earned admission to a highly selective graduate program in Biophysical Chemistry. He submitted a research paper for publication in the Proceedings of the National Academy of Sciences; and he has been actively involved in veteran's organizations, particularly Iraq and Afghanistan Veterans of America (IAVA), where he is one of the leading volunteers in his region. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 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. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. As codified in 10 U.S.C. § 1553, Discharge Review Boards shall review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the former member, and review the case with liberal consideration to the former member that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the member's discharge or dismissal. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable. Of note, this case was remanded by the US District Court, District of Connecticut to the Army Board for Correction of Military Records on 19 September 2017. However, on further clarification, the case was remanded back to the Army Discharge Review Board (ADRB) for review. The ADRB considered this case, first in a records review in 2010, and then in a personal appearance hearing in 2015. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant seeks relief contending, he had a proven record of excellence during his time in service. The applicant's service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered. The applicant further contends, his misconduct was an isolated incident and he had other behavior health issues that impaired his ability to serve. Although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization of service. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant's AWOL caused him to miss a large, unit-wide training exercise. Prior to his AWOL, the applicant was on notice that the exercise would occur during the period of time when he chose to leave his unit without authorization. The applicant contends he was denied a rehabilitation transfer. However, AR 635-200, paragraph 1-16d(2), titled counseling and rehabilitative requirements, provides that rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Lastly, the applicant contends, he was granted a 30 percent disabling rating. The applicant submitted a VA rating decision which indicated he received a service connected evaluation of PTSD with depressive symptoms (formerly major depressive disorder with insomnia), which he received a 30 percent disabling rating, which was increased to 50 percent, effective 28 July 2009. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge. The record shows that on 4 June 2009, the applicant underwent a mental status evaluation which indicated his Behavior: was Normal, Level of Alertness: Fully alert, Level of Orientation: Fully oriented, Mood and Effect: Depressed, Thinking Process: Clear, Thought Content: Normal and Memory: Good. Further, notwithstanding his depressed mood and effect diagnosis, he had the mental capacity to understand and participate in the proceedings, was mentally responsible and met the retention requirements of Chapter 3, AR40-501 and did not require a MEB. In regards to his proposed treatments, it was recommended that he follow up at Behavioral Health and his fitness for duty; it was recommended that he return to duty with no change in his duty status. The applicant was psychiatrically cleared for any administrative action deemed appropriate by Command. The applicant was evaluated for PTSD and mTBI and did not meet the criteria for either diagnosis at the time of his separation from the Army. It appears the applicant's chain of command determined that although he was suffering from depression he knew the difference between what was right and wrong as indicated by the Mental Status Evaluation. Consequently, the record indicates there was no error in processing the applicant's separation, nor is there any injustice indicated by the command's decision to separate the applicant from the Army. The applicant's post-service accomplishments have been noted as outlined on the application and in the documents with the application. The applicant is to be commended for his successful transition into the civilian sector. The third party statements provided with the application speak highly of the applicant's performance. However, some of the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 14 March 2018, and by a 5-0 vote, the Board determined the discharge characterization is inequitable based on the applicant's length and quality of service, to include combat service, post-service accomplishments, the circumstances surrounding the AWOL (i.e. in-service diagnosis of OBH (Depression) and post-service diagnosis of PTSD with a VA 50%, combat-related disability rating). The psychiatrist sitting as a Board member identified a nexus between the applicant's PTSD and his misconduct. Applying liberal consideration of the PTSD as directed by 10 U.S.C. § 1553 and other authorities, the Board determined relief is warranted. 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, Chapter 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, Chapter 14-12a e. Change SPD/RE Code to: Change SPD to JKN / No change to RE code f. Restore Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170014170 1