1. Applicant's Name: a. Application Date: 5 December 2017 b. Date Received: 20 December 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of general (under honorable conditions) discharge to honorable. The applicant seeks relief contending, in effect, served an honorable career in the military. The applicant's pattern of misconduct can be explained by the mitigating circumstances that surround the PTSD and TBI diagnoses. As a result of PTSD and TBI, the applicant's application is subject to the Kurta Memo, where "liberal consideration" is a requirement for review. In the years since discharge, the applicant has suffered from PTSD, TBI, and various other medical conditions requiring medical care as a direct result of military service. Despite the efforts in obtaining higher education, the current discharge status dulls the record and makes obtaining gainful employment in the applicant's field of specialty nearly impossible. Counsel states, alternatively, and in addition, equity and justice of the military branches and to discharged service members entitles the applicant to a discharge upgrade. Having served in a hostile combat zone along with the traumatic experiences that came with it, all while struggling with personal and family problems, the applicant has contributed immeasurably to the country and should be regarded in kind. In light of the arguments for equity and justice as well as the Kurta Memo's liberal consideration standard for applications like applicants, the applicant's application should be granted to upgrade the discharge from General under Honorable Conditions to Honorable. Counsel further details the contentions in an allied legal brief. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate no BH diagnoses while on active duty, The applicant is 70% service-connected for PTSD and 40% for mTBI from the VA. Post- service, the applicant has been diagnosed with Mood Disorder NOS, Alcohol Abuse, Unspecified Depressive Disorder, Unspecified Personality Disorder, and Cluster B Personality Disorder traits. In summary, the applicant did not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 26 February 2020, and by a 3-2 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 (i.e. post-service diagnosis of PTSD and mTBI), post-service accomplishments, 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 honorable. 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 20 December 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 November 2007 (2) Basis for Separation: The applicant was informed of the following reasons: He had been found guilty of Assault, Failure to Report, and Disrespect to a Noncommissioned officer on numerous occasions. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: undated (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 16 November 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 22 October 2004 / 6 years b. Age at Enlistment / Education / GT Score: 17 years / GED / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B1P, Information Systems Operator-Analyst / 3 years, 4 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Alaska, SWA / Iraq (6 October 2006 - 27 November 2007) f. Awards and Decorations: AAM, NDSM, GWOTSM, ICM, ASR, OSR-2, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 18 May 2006, for assaulting PV2 F., by pushing him and knocking his food tray to the ground (28 February 2006). The punishment consisted of extra duty and restriction for 14 days. CG Article 15, dated 6 June 2007, for failing to go at the time prescribed to his appointed place of duty (13 May 2007). The punishment consisted of a reduction to E-3; forfeiture of $403 pay (suspended); and, extra duty for 14 days. FG Article 15, dated 6 August 2007, for failing to go at the time prescribed to his appointed place of duty (20 June 2007); and; for willfully disobeying a lawful order (8 June 2007). The punishment consisted of a reduction to E-1; forfeiture of $700 pay per month for two months (suspended); and, extra duty and restriction for 45 days. Three Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 16 November 2007, reflects the applicant was cleared for any 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: Partner Relational Problem. The applicant provided a copy of his VA disability rating decision, dated 28 August 2014, which reflects the applicant was rated 30 percent disability for PTSD and 40 percent disability for TBI. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has earned his Bachelor of Arts with Honors and Distinction from the University of Michigan and a Master's in Public Policy from the University of Michigan, Gerald R. Ford School of Public Policy. The applicant has worked as a research assistant, a project manager for the Institute for Research on labor, Employment and the Economy, a strategist on technology policy for Cable Technology Laboratories, and as a graduate student instructor at the University of Michigan, Gerald R. Ford School of Public Policy. 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 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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, through counsel, requests an upgrade of his general (under 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. 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 contends the VA has granted him a service connected disability for PTSD and TBI, which were undiagnosed during his service and led to his discharge. 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 reflects that on 16 November 2007, the applicant underwent a mental status evaluation which indicates he was mentally responsible 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 that he was having family issues that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 26 February 2020, and by a 3-2 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 (i.e. post-service diagnosis of PTSD and mTBI), post- service accomplishments, 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 honorable. 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: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code 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 AR20180000076 1