Applicant's Name: a. Application Date: 2 April 2019 b. Date Received: 15 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under (other than honorable conditions). The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, that his discharge should be upgraded due to the years of good service he had prior to the last 3 months of bad service. The applicant contends he was changing units and was alone, he lost all senior leadership, which made his transition difficult. He was deployed twice (Iraq and Afghanistan) and received the purple heart for his service; he was dealing with KIA's of fellow Soldiers and transitioning back from deployment. In a records review conducted on 23 July 2021, and by a 3-2 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, combat wounded, the circumstances surrounding the discharge (TBI, OBHI), and 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 3. Please see Section 9 of this document for more detail regarding the Board's decision. (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: 12 June 2014 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 29 April 2014, the applicant was charged with Violating Article 85, UCMJ, for without authority and with intent to remain away permanently, absent himself from his unit on 8 February 2014 and did remain so absent in desertion until he was apprehended on or about 28 April 2014; Violating of Article 112a, UCMJ, for wrongfully using methamphetamine between on or about 3 November 2013 and 3 December 2013; and Violating of Article 134, UCMJ, for on divers occasions, between on or about 1 November 2013 and 28 April 2014, wrongfully have sexual intercourse with H.F., a woman not his wife. (2) Legal Consultation Date: 29 April 2014 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 8 May 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 January 2009 / 6 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 114 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 6 years, 8 months, 23 days d. Prior Service / Characterizations: RA, 14 June 2007 to 20 January 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (22 July 2009 to 1 July 2010) and Afghanistan (14 November 2011 to 3 September 2012) f. Awards and Decorations: PH, ARCOM, AGCM, NDSM, ACM-CS, GWOTSM, ICM-CS, ASR, OSR-2, NATOMDL, CAB g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DD Form's 4187 changing the applicant's duty status: From Present for Duty (PDY) to Absent Without Leave (AWOL), effective 9 February 2014; From AWOL to Dropped from the Rolls (DFR), effective 13 March 2014; From DFR to PDY, effective 28 April 2014; and From PDY to Confinement Military Authority (CMA), effective 28 April 2014 i. Lost Time / Mode of Return: Absent without leave 78 days (9 February 2014 to 27 April 2014), mode of return was apprehension and confinement military authority 17 days (28 April 2014 to 14 May 2014). Total time lost 95 days. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 1 May 2014. It was noted that the applicant screened positive for PTSD and TBI. The applicant was evaluated and cleared by TBI in 2012. No further evaluation/action was necessary. The applicant screened positive for PTSD, Clinical interview indicated that the applicant was experiencing some PTSD symptoms likely due in part to combat experiences in 2012 (applicant received Purple Heart and lost colleagues while deployed) but more focally to acute legal stressors. The applicant did not meet criteria for PTSD at that time and met medical retention standards IAW AR 40-501. The applicant had been cleared from a behavioral health perspective for administrative proceeding per AR 635-200. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214 for the period of service under review. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides 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), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides 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, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification 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. (2) 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. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) 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. (7) Paragraph 10-8a, stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (8) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. (9) Paragraph 10-8c, stipulates when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. e. 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 "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." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The AMHRR confirms the applicant was charged with the commission of several offenses 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 AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant seeks relief contending that his discharge should be upgraded due to the years of good service he had prior to the last 3 months of bad service. The applicant contends he was changing units and was alone, he lost all senior leadership, which made his transition difficult. He was deployed twice (Iraq and Afghanistan) and received the purple heart for his service; he was dealing with KIA's of fellow Soldiers and transitioning back from deployment. The applicant's contentions were noted; the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (YES) Applicant was diagnosed with mild TBI, a potentially mitigating condition under Liberal Consideration. (2) Did the condition exist or experience occur during military service? (YES) The applicant's diagnosis of TBI occurred while the applicant was deployed and exposed to a blast. (3) Does the condition or experience actually excuse or mitigate the discharge? (YES) Medical documentation indicates the applicant experienced significant frontal lobe dysfunction (as a result of his head injury) which mitigates his misconduct. This dysfunction can cause avoidant behaviors, such as AWOL; self-medicating behaviors, such as illicit drug use and impulsive, poor judgment behaviors, such as engaging in adultery. (4) Does the condition or experience outweigh the discharge? (YES) The severity of the applicant's TBI outweighs his discharge and warrants a discharge upgrade. b. The applicant's contentions of moving units were noted, however relief had already been granted due to mitigating BH condition. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, combat wounded, the circumstances surrounding the discharge (TBI, OBHI), and prior period of honorable service. d. Rationale for Decision: (1) The board voted to change the applicant's characterization of service because the applicant's AWOL, drug use, and adultery were all mitigated by his severe TBI. (2) The board voted to change the reason to Secretarial Authority. (3) The SPD code associated with SA discharge is JFF, and the Board voted to change the RE-code to 3. 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-3 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Af ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190006534 5