1. Applicant's Name: a. Application Date: 16 July 2018 b. Date Received: 23 July 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade an under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the Kurta Memo weighs heavily in favor of granting the applicant's requested relief. The applicant's medical records, OMPF, and personal statement show that the misconduct was attributable to, and mitigated by, severe PTSD and other mental health and physical medical conditions. The applicant meritoriously served in an intense combat tour, and earned an award for valor. 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 diagnoses of Adjustment Disorder with Anxiety and Depressed Mood, Alcohol Dependency, Severe Alcohol Use Disorder, and Anxiety Disorder NOS. The VA has diagnosed the applicant with PTSD, Major Depressive Disorder, Unspecified Trauma and Stressor Related Disorder, Adjustment Disorder with Depressed Mood, and Psychotic Disorder NOS. In summary, the applicant had a BH diagnosis that is partially mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 28 June 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, valor, the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD), and a prior period of honorable service. 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), 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 / Under Other Than Honorable Conditions b. Date of Discharge: 25 August 2014 c. Separation Facts: NIF; however, based on the minimal information provided by the applicant: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: 26 June 2014, majority recommended an Under Other Than Honorable Conditions discharge, and one member recommended a General (Under Honorable Conditions) discharge. According to the Report of Proceedings by Board of Officers (DA Form 1574), the Board found that the allegations of driving while intoxicated; driving with a suspended license; failing to report to his appointed place of duty on two separate occasions on 9 September 2013, and 26 August 2013; damaging government property; failing to verify his vehicle inspection; leaving his charge of quarters duty without proper relief; wrongfully cashing insufficient funded checks for personal use from a subordinate; physically assaulting his spouse; resisting arrest and failing to obey orders by military police officers; assaulting a military police officer; and wrongfully using cocaine, were supported by preponderance of evidence. (6) Separation Decision Date / Characterization: 13 August 2014 / Under Other Than Honorable Conditions (based on the Report of Proceedings by Board of Officers) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 October 2009 / 6 years b. Age at Enlistment / Education / GT Score: 23 / GED / 92 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, 2B Infantryman, and 92A10, Automated Logistical Specialist / 9 years, 16 days d. Prior Service / Characterizations: USAR (16 September 2005 to 16 October 2006) / NA RA (17 October 2006 to 21 November 2007) / HD RA (22 November 2007 to 1 October 2009) / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (28 October 2010 to 27 October 2011) f. Awards and Decorations: ARCOM-V DEV; ARCOM; AGCM-2; NDSM; ACM-2CS; GWOTSM; KDSM; NCOPDR-2; ASR; OSR-2; NATO MDL; CIB g. Performance Ratings: Four NCOERs: 1 January 2010 thru 31 December 2010, Among the Best 1 January 2011 thru 1 August 2011, Fully Capable 1 August 2011 thru 31 July 2012, Fully Capable 1 August 2012 thru 31 July 2013, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 16 May 2013, for being derelict in the performance of his duties on two separate occasions on 13 November 2012, and 10 November 2012, disobeying a lawful general regulation between 18 October 2012 and 22 October 2012, and willfully damaging military property of a value of more than $500. The punishment consisted of forfeiture of $631 (suspended), 14 days of extra duty, and 14 days of restriction (suspended). FG Article 15, dated 18 November 2013, for failing to go to his appointed place of duty at the prescribed time on two separate occasions on 26 August 2013 and 9 September 2013, and wrongfully using marijuana on divers occasions between 28 July 2013 and 28 August 2013. The punishment consisted of a reduction to E-4, forfeiture of $1,201 pay per month for two months, 45 days of extra duty and restriction, and an oral reprimand. General Officer Memorandum of Reprimand (GOMOR), dated 21 February 2014, indicates the applicant was reprimanded for driving while intoxicated on 8 February 2014. The following were obtained from the applicant's documentary evidence, NIF (however, only those received during current period of service under review): Negative counseling statements for damaging government property; making, drawing, or uttering a check without sufficient funds; being implicated in a large check fraud; leaving charge of quarters without proper relief; making a false official statement; failing to be at his appointed place of duty at the prescribed time on numerous occasions; having positive urinalyses; An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 13 September 2013, indicates the specimen collected on 28 August 2013, on an "IU" (Inspection, Unit) basis, provided by the applicant, tested positive for "THC." An Electronic Copy of the DD Form 2624 (Specimen Custody Document - Drug Testing), dated 20 September 2013, indicates the specimen collected on 10 September 2013, on an "IR" (Inspection, Random) basis, provided by the applicant, tested positive for "THC." Military Police Report, dated 4 February 2012, indicates the applicant was the subject of an investigation for simple assault-consummated by a battery, spouse abuse, simple assault on military law enforcement officer, and resisting apprehension. Military Police Report, dated 8 November 2012, indicates the applicant was the subject of an investigation for conspiracy and larceny of government funds. Military Police Report, dated 10 September 2013, indicates the applicant was the subject of an investigation for driving with a suspended driver's license. Military Police Report, dated 17 January 2014, indicates the applicant was the subject of an investigation for using marijuana. Military Police Report, dated 9 February 2014, indicates the applicant was the subject of an investigation for operating a vehicle while intoxicated and unsafe lane usage. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence: Memorial Healthcare System medical history (page 4, 10, 11, and 17) shows diagnoses of Anxiety, Depression, and PTSD (at pages 693, 699, 700, and 706 of medical records file). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 16 July 2018, with counsel-authored brief; applicant-authored statement; personnel file, and voluminous medical records. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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. 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 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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 to upgrade his under other than honorable conditions discharge to general (under honorable conditions) or honorable and to change the narrative reason for his discharge. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's submitted evidence confirms that his 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 serious incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. 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 contentions regarding his behavioral health issues which involved being diagnosed with PTSD, were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues along with notable service-connected post-traumatic stress disorder symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his accomplishments and complete period of service were or were not sufficiently mitigating to warrant an upgrade of his characterization of service and to change the narrative reason for his discharge. However, insofar as, the applicant's request to change the reason for his separation, the narrative reason for his separation is governed by specific directives and as approved by the separation authority. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 14, paragraph 14-12c is "Misconduct (Serious Offense)," and the separation code is JKQ. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 28 June 2019, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, valor, the circumstances surrounding the discharge (i.e. in-service and post-service diagnosis of PTSD), and a prior period of honorable service. 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), 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, paragraph 14-12a e. Change SPD / RE Code to: JKN / 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 AR20180010286 1