1. Applicant's Name: a. Application Date: 14 January 2019 b. Date Received: 22 January 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, has been an outstanding and model citizen. The applicant completed college. The applicant became a police officer in the community and rose to the rank of Patrol Sergeant. The applicant made an error during the time in Service. Upon returning from Iraq, the applicant had personal issues that interfered with the applicant's judgment. An upgrade would allow the applicant to advance a career in law enforcement. 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 Secondary Insomnia. The applicant is 50% service-connected; 30% 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 12 August 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. in-service and post-service diagnoses of PTSD, TBI, and OBH), and post-service accomplishments. 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 (AWOL) / AR 635-200, Paragraph 14-12c(1) / JKD / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 13 May 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 April 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent without leave (AWOL from 3 August 2007 to 11 January 2008, and 12 January 2008 to 18 November 2009. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 14 April 2010 (5) Administrative Separation Board: Waived in an Offer to Plead Guilty, dated 14 April 2010, in exchange for referral of Charge to a Summary Court-Martial. The Offer to Plead Guilty was accept on 14 April 2010. (6) Separation Decision Date / Characterization: 5 May 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 July 2004 / 4 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 6 months, 1 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: SWA / Iraq (28 September 2005 to 21 June 2006) f. Awards and Decorations: ARCOM; AAM; NDSM; ICM-2CS; GWOTSM; ASR; OSR; CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Return of Absentee, dated 17 November 2009, indicates the applicant surrendered to military authorities on 17 November 2009. Negative counseling statements for imposing limitations on the applicant's liberty due to his previous AWOL; being considered a flight risk; off-post past privileges being revoked; specific instructions on reporting for duty; curfew being from 2200 hours to 0600 hours; remaining in the battalion area during non-curfew hours; and failing to follow orders would result in violation of Article 90, UCMJ. Report of Behavioral Health Evaluation, dated 11 January 2010, providing no diagnosis, psychiatrically cleared the applicant for any administrative action deemed appropriate by his command. Record of Trial by Summary Court-Martial with its associated Charge Sheet, indicate that on 16 April 2010, the applicant was found guilty of two specifications of violating Article 86, UCMJ, for being AWOL on 3 August 2007, and remained absent until 11 January 2008, and being AWOL on 12 January 2008, and remained absent until 18 November 2009. The sentence consisted of a reduction to E-1, forfeiture of $965, and 30 days of confinement. The Summary Court-Martial Convening Authority approved the sentence on 23 April 2010. i. Lost Time / Mode of Return: 838 days (AWOL on 3 August 2007 to 17 November 2009) / The applicant surrendered to military authorities. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 8 December 2009, indicates the applicant and examiner noted behavioral health issues and treatment (the applicant also noted being treated for a whiplash and head injury due to IED blast in Iraq). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 14 January 2019, and five character reference/supporting statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that since his discharge he has been an outstanding and model citizen, and he completed college and became a police officer in his community, rising to the rank of Patrol Sergeant. 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(1) allows for an absentee returned to military control from a status of absent without leave or desertion to be separated for commission of a serious offense. 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 "JKD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(1), Misconduct (AWOL). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKD" 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 an upgrade of his under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The available 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. By the incident 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. Although the applicant did not directly present any behavioral health issues, but indicated that upon returning from Iraq, he had personal issues that interfered with his judgment. A careful review of the available record indicates the applicant's behavioral health issues symptoms existed. 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, and his post service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 third party statements provided with the application speak highly of the applicant's performance and character. 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. 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 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 12 August 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. in-service and post-service diagnoses of PTSD, TBI, and OBH), and post-service accomplishments. 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 AR20190003104 1