1. Applicant's Name: a. Application Date: 29 August 2017 b. Date Received: 8 September 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, he seeks eligibility for VA benefits due to his PTSD and TBI, which he occurred in combat. He states, due to the poor treatment he received and the decision of his chain of command, he did not receive the care that he needed. He continues to suffer with PTSD and TBI and he cannot function properly. Because of his mental state at the time, he was unstable, which affected his behavior and actions. Per the Board's Medical Officer, based on the information available for review at the time within the applicant's case file, AHLTA and JLV. AHLTA indicates applicant was diagnosed with Adjustment disorder, Alcohol Abuse, Insomnia. Also diagnosed with PTSD, mild TBI and Anxiety disorder NOS while on active duty. Applicant's PTSD is associated with experiences he had in Iraq. A note written by his psychiatrist states his PTSD and TBI symptoms improved considerably once he stopped drinking while incarcerated. His affect, memory, attention and concentration all improved. As a result, his S-2 profile was lifted. VA notes indicate applicant has been diagnosed with PTSD, MDD (Major Depressive Disorder), Methamphetamine Use Disorder and Social Phobia. Based on the available information, applicant has two BH conditions (PTSD and mild TBI) which are mitigating for the following misconduct: 1) Wrongful use of marijuana; 2) Two incidents of AWOL; 3) Failure to report; 4) Disobeying orders from NCO and commissioned officers; 5) Being disrespectful toward a NCO; 6) Being arrested for drunk and disorderly conduct. [As PTSD and TBI are associated with use of illicit drugs and/or alcohol to self-medicate, there is a nexus between applicant's PTSD/TBI and wrongful use of marijuana and being arrested for drunk and disorderly conduct. As PTSD is associated with avoidant behaviors, there is a nexus between applicant's PTSD and the offense of AWOL and Failure to Report. As PTSD and TBI are associated with problems with authority figures and irritability, there is a nexus between applicant's PTSD and the offense of disobeying an order and being disrespectful.] Communicating a threat and assaulting a NCO are not mitigated by his BH conditions. In a records review conducted at Arlington, VA on 5 January 2018, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service and the circumstances surrounding the discharge and AWOL (i.e. in-service diagnosis of PTSD and TBI and VA post-service diagnosis of PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (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 / Under Other Than Honorable Conditions b. Date of Discharge: 8 September 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 August 2008 (2) Basis for Separation: The applicant was informed of the following reasons: On 15 November 2006, he received an Article 15 for marijuana use. On 13 March 2008, he received an Article 15 for the offences of: Being AWOL between 17 January 2008 and 12 February 2008 Failure to Report Wrongful use of marijuana and communicating a threat. On 12 May 2008, he again absented himself without authority and wrongfully appropriated another Soldier's vehicle. The AWOL was terminated when he was arrested for larceny. Upon his return, he disobeyed orders from both a commissioned officer and a noncommissioned officer. After the Summary Court-Martial for these offenses, he was arrested for disorderly conduct in Watertown on two occasions. Additionally, he disrespected and assaulted a noncommissioned officer. Additionally, he disrespected and assaulted a noncommissioned officer. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 August 2008 (5) Administrative Separation Board: On 21 August 2008, the applicant unconditionally waived consideration of his case before an administrative separation board. (6) Separation Decision Date / Characterization: 2 September 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 January 2006 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 7 months, 8 days / Based on the applicant's service record and his enlistment document, the applicant's DD Form 214, blocks 12b (months) and 12c (days) should reflect 7 months and 8 days. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (16 August 2006 - 27 October 2007) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ASR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 18 November 2006, for wrongfully using marijuana (between 1 July and 1 August 2006). The punishment consisted of a reduction to E-1; forfeiture of $636 pay per month for two months; and, an oral reprimand. FG Article 15, dated 13 March 2008, for being AWOL (between 17 January and 12 February 2008); failing to go at the time prescribed to his appointed place of duty (15 January 2008); failing to go at the time prescribed to his appointed place of duty on divers occasions between 1 and 28 November 2007; wrongfully used marijuana (between 5 November 4 December 2007); and, wrongfully communicated a threat (9 January 2008). The punishment consisted of a reduction to E-1; forfeiture of $673 pay; restriction for 14 days (suspended); and, an oral reprimand. Charge Sheet, dated 30 May 2008, reflects the applicant was charged with: Violation of the UCMJ, Article 86, for without authority absent himself from his unit from 12 May 2008 until 19 May 2008, when he was apprehended. Violation of the UCMJ, Article 90, having received a lawful order to submit to a urinalysis test, willfully disobeyed the same (19 May 2008). Violation of the UCMJ, Article 91, two specifications: having received a lawful order to submit to shave and get into duty uniform, willfully disobeyed the same (19 May 2008); and having received a lawful order to get into the appropriate uniform, willfully disobeyed the same (19 May 2008). Violation of the UCMJ, Article 121, wrongfully appropriate a motor vehicle, the property of PVT J (12 May 2008). Report of Result of Trial, reflects the applicant was tried in a Summary Court-Martial on 7 July 2008. The applicant was charged with five specifications. The summary of offenses, pleas and findings: Violation of Article 86, AWOL, from 12 May to 19 May 2008; guilty inconsistent with the plea. Violation of Article 90, Disobeying a lawful command (19 May 2008); Not guilty, consistent with the plea. Violation of Article 91, Disobeyed a lawful order: On 19 May 2008; guilty, inconsistent with the plea. On 19 May 2008; guilty, inconsistent with the plea. Violation of Article 121, wrongfully appropriate a motor vehicle (12 May 2008); guilty, inconsistent with the plea. Sentence: Confinement for 30 days and forfeiture of $898 pay. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 26 days (AWOL, 17 January 2008 - 12 February 2008) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 17 July 2008, reflects the applicant was cleared for administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with PTSD and Chronic and Traumatic Brain Injury (mild) (Axis I). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149, with all allied documents listed in block 9 of the application. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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. 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 his under other than honorable conditions discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms that 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. Admin The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4. The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense). Soldiers processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3. 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's service record contains documentation that supports a diagnosis of in service PTSD and TBI; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 17 July 2008, the applicant underwent a mental status evaluation, which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The applicant contends due to the poor treatment and his chain of command's decisions he did not receive the care he needed. However, 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 character of the applicant's discharge is commensurate with his overall service record. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant contends that an upgrade of his discharge would allow him VA benefits. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Notwithstanding the administrative error, based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 5 January 2018, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service and the circumstances surrounding the discharge and AWOL (i.e. in-service diagnosis of PTSD and TBI and VA post-service diagnosis of PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. Restore (Restoration of) 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 AR20170016427 4