1. Applicant's Name: a. Application Date: 4 January 2019 b. Date Received: 15 January 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from under other than honorable conditions to honorable and a change to the narrative reason for separation to Secretarial Authority. The applicant through counsel seeks relief contending, in effect, Issue 1; the discharge characterization and reason for discharge are not equitable because the length and quality of service warrant an honorable discharge with no discrediting entries. Issue 2; the discharge characterization and reason for discharge are not equitable because arbitrary and capricious command actions contributed to the discharge and characterization. Issue 3; the discharge characterization and reason for discharge are not equitable because policies at the time of discharge did not require consideration of mental health and its effect on the applicant's conduct as they do now. Issue 4; the discharge characterization and reason for discharge are not equitable because PTSD and TBI excuse, mitigate, and outweigh the misconduct and warrant an honorable discharge with no discrediting entries. The applicant went AWOL because of PTSD and TBI, which was a dramatic departure from the applicant's beliefs and duty performance; and reflects how significantly the applicant was impaired by PTSD. 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 Depression. The applicant is 100% service-connected for PTSD from the VA. The VA has also diagnosed the applicant with mTBI. In summary, the applicant has 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 9 October 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, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and TBI), 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 the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 7 September 2010 c. Separation Facts: Yes (1) Date Charges Were Preferred: 23 July 2010 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge Sheet which shows on 23 July 2010, the applicant was charged with AWOL (27 January 2009 until 5 July 2010). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 23 July 2010, the applicant requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 18 August 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 July 2005 / 6 years b. Age at Enlistment / Education / GT Score: 24 years / GED Certificate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 7 years, 5 months, 25 days d. Prior Service / Characterizations: RA, 4 October 2001 to 4 July 2005 / HD e. Overseas Service / Combat Service: Germany / SWA / Iraq, 18 August 2007 to 31 October 2008 f. Awards and Decorations: ARCOM, AGCM-2, NDSM, GWOTEM, ICM-CS, GWOTSM, ASR, CIB g. Performance Ratings: September 2005 to August 2006, Fully Capable 1 September 2006 to 11 March 2007, Among The Best 1 April 2007 to 24 February 2008, Marginal h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 24 February 2008, for failing to obey a lawful general order, by-wrongfully possessing alcohol within the MND-B AOR (11 February 2008); reduction to the grade of SPC / E-4, forfeiture of $1,117 pay for two months; extra duty and restriction for 45 days. i. Lost Time / Mode of Return: AWOL for 524 days, 27 January 2009 until 5 July 2010; apprehended by civilian authorities. He also had 41 days of excess leave, 23 July 2010 until 1 September 2010. j. Diagnosed PTSD / TBI / Behavioral Health: Medical Record dated, 1 December 2008, revealed the applicant had an in service diagnosis of depression and he was prescribed medication for this condition. Letter, Oakland Vet Center, dated 20 March 2017, reflects, the applicant meets all of the DSM-V criteria for PTSD. Mental Health Medication Management Note, dated 28 August 2017, indicates the applicant was diagnosed with PTSD, major depression, TBI and alcohol abuse in remission. He was prescribed medications for his conditions. VA Rating Decision, dated 11 August 2017, shows the decision to deny service connection for posttraumatic stress disorder with traumatic brain injury was clearly and unmistakably erroneous; therefore, service connection was established for PTSD with an evaluation of 100 percent, effective 8 September 2010. VA Rating decision, dated 6 November 2017, relates the applicant was service connected for PTSD with TBI and granted an evaluation of 100 percent disabling, effective 8 September 2010. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief; attorney's brief, Summary of Service and Statement of Issues in Support of support of application (16 pages), with Exhibits A-M; Exhibit A, Memorandum for Secretaries of the Military Departments (five pages); Exhibit B, Service personnel records (29 pages); Exhibit C, Service treatment records (27 pages); Exhibit D, Veterans Benefits Administration records (17 pages); Exhibit E, United States Army, 1st Stryker Brigade Combat Team History; Exhibit F, applicant's personal statement (ten pages); Exhibit G, Statement of Sergeant First Class D.J.O. (three pages); Exhibit H, Letter from D.J., Ph.D., Director, Oakland Vet Center (ten pages); Exhibit I, Department of the Army, Combat and Operational Stress Control Manual for Leaders and Soldiers, FM 6-22.5 (51 pages); Exhibit J, Statement by applicant's spouse (two pages); Exhibit K, Post-service health records (Nine pages); Exhibit L, Army Discharge Review Board decisions (11 pages); and Exhibit M, U.S. Government Accountability Office, DOD Health: Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury Are Considered in Misconduct Separations, GA0-17-260 (66 pages). 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Army policy states although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 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 under other than honorable conditions to honorable and a change to the narrative reason for separation to Secretarial Authority. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents several acts of significant achievement and valor to include a combat tour; however, it did not support the issuance of a general or an honorable discharge by the separation authority at the time of separation. The applicant requests a change to the narrative reason for separation to Secretarial Authority. AR 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The regulation further stipulates that no deviation is authorized. The applicant through counsel seeks relief contending the following issues: Issue 1; his discharge characterization and reason for discharge are not equitable because the length and quality of his service warrant an honorable discharge with no discrediting entries. 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. Issue 2; his discharge characterization and reason for discharge are not equitable because arbitrary and capricious command actions contributed to his discharge and characterization. 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. Issue 3; his discharge characterization and reason for discharge are not equitable because policies at the time of his discharge did not require consideration of his mental health and its effect on his conduct as they do now. Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical or mental health condition solely to spare a Soldier who may have committed serious acts of misconduct. Issue 4; his discharge characterization and reason for discharge are not equitable because his PTSD and TBI excuse, mitigate, and outweigh his misconduct and warrant an honorable discharge with no discrediting entries. 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 a single 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. Lastly, the applicant contends, he went AWOL because of PTSD and TBI, which was a dramatic departure from his beliefs and duty performance; and reflects how significantly he was impaired by PTSD. 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 third party statements provided with the application speak highly of the applicant. However, 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 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 9 October 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, the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD and TBI), 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 the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 1. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / RE-1 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 AR20190001990 1