1. Applicant's Name: a. Application Date: 25 September 2018 b. Date Received: 5 October 2018 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. The applicant seeks relief contending, in effect, lacks of qualifications for VA education benefits. The discharging authority failed to send the case to a medical board prior to discharge. The applicant was rated 100 percent disabled, effective from 7 May 14 for service-connected issues that should have been fully evaluated prior to discharge. 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, Depression with Anxiety, Panic Disorder without Agoraphobia, and Personality trait/coping Disorder. The applicant is 100% service-connected; 70% for Panic Disorder from the VA. The VA also diagnosed the applicant with PTSD. 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 21 February 2020, and by a 3-2 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBHI and PTSD). 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), the separation code to JKN, and the reentry code to RE-3. (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-4 / General (Under Honorable Conditions) b. Date of Discharge: 7 March 2010 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 24 February 2010 (2) Basis for Separation: The applicant was informed of the following reasons for his discharge; stealing one DVD, one DVD Box Set, and two Nintendo DS Games, of a value of $137.81, the property of Army and Air Force Exchange Service (AAFES) (20 December 2009); and having knowledge of a lawful order issued by MG XX, USASET AF Command Policy Letter 27 (SJA), Prohibited Substances, an order which it was his duty to obey, fail obey the same by wrongfully consuming "Spice" (14 November 2009). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 24 February 2010 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 February 2010 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2009 / 3 years, 30 weeks b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-2 / 91F10, Smalls Arms / Artillery Repairer / 1 year, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Italy / None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 2 February 2010, for stealing one DVD, one DVD Box Set, and two Nintendo DS Games, of a value of $137.81, the property of Army and Air Force Exchange Service (AAFES) (20 December 2009); extra duty and restriction for 14 days. FG Article 15, dated 4 December 2009, for having knowledge of a lawful order issued by MG W.B.G. III, USASET AF Command Policy Letter 27 (SJA), Prohibited Substances, an order which it was his duty to obey, fail obey the same by wrongfully consuming "Spice" (14 November 2009); reduction to PVT / E-1, forfeiture of $699 pay for two months, one month (suspended), extra duty and restriction for 45 days, both suspending 15 days of punishment. Military Police Report, dated 6 November 2009, revealed the applicant was under investigation for failure t obey an order, on post. Military Police Report, dated 20 December 2009, relates the applicant was under investigation for larceny of private property, on post. On 22 January 2010, the suspension of punishment of reduction to PVT / E-1, forfeiture of $699 pay for two months, one month, extra duty and restriction for 15 days, was vacated for the new offense of stealing one DVD, one DVD Box Set, and two Nintendo DS Games, of a value of $137.81, the property of Army and Air Force Exchange Service (AAFES) (20 December 2009). The applicant received two negative counseling statements regarding the possession and use of a controlled substance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 18 February 2010, indicates the applicant had an Axis I diagnosis of a panic disorder; and Axis II, personality trait affecting condition; rule out antisocial personality disorder. The attending psychiatrist opined that the applicant would not respond to Command efforts at rehabilitation (such as transfer, disciplinary action or reclassification), or to any behavioral health treatment methods currently available in any military behavioral health facility. VA, Entitlement to Benefits, dated 2 February 2015, shows that the was assigned a 100 percent evaluation for a panic disorder, with agoraphobia and secondary cannabis abuse, effective 7 May 2014. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); and a letter, Department of Veterans Affairs, entitlement to VA benefits (four pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): 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 the characterization of service from general (under honorable conditions) to honorable. 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 lacks of qualifications for VA education benefits. 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. The applicant further contends, his discharging authority failed to send his case to a medical board prior to his discharge. Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant also contends, he was rated 100 percent disabled, effective from 7 May 14 for service-connected issues that should have been fully evaluated prior to discharge. The provided a VA entitlement to benefits letter, which shows he was granted an evaluation of 100 percent for a panic disorder, with agoraphobia and secondary cannabis abuse. 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 21 February 2020, and by a 3-2 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBHI and PTSD). 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), the separation code to JKN, and the reentry code to RE-3. 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 / RE-3 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 AR20180014733 1