1. Applicant's Name: a. Application Date: 23 May 2019 b. Date Received: 27 May 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 honorable. The applicant seeks relief contending, in pertinent part and in effect, it took over 10 years to request changes to the discharge, because the applicant was ashamed. However, the applicant deserves the veterans' benefits. The applicant lost all the hearing in one ear while in Iraq. The applicant does not have medical records. When the applicant returned from Iraq, the applicant found that the wife and child had left. The applicant's drinking problem and nightmares started. The Army informed the applicant that it was just the result of war. The applicant was a great Soldier, who received many medal and a hero of the battalion. The applicant just needed help. As for the AWOL, the applicant never left post. The applicant just got lost in switching battalions and no one knew what was happening. The applicant loved and served the country proudly. In a separate statement, the applicant asserts having lost 80 percent of the hearing in the right ear. The applicant deployed and served in Iraq for 13 months, where they did and seen things that cause the applicant to still have nightmares. The applicant has seen a good friend being shot and others being blown up. An upgrade would enable the applicant to receive benefits, and the medical and mental help the applicant needs. In a records review conducted at Arlington, VA on 13 May 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (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: 26 December 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 December 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent without leave (AWOL) from 24 May 2007 to 12 July 2007, from 16 July 2007 5o 5 November 2007, and he was found drunk on duty on 13 July 2007. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: Waived, 4 December 2007 (5) Administrative Separation Board: Waived, 4 December 2007, pursuant to an accepted "Offer to Plead Guilty," dated 14 November 2007. (6) Separation Decision Date / Characterization: 13 December 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 August 2005 / 5 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 5 months, 27 days d. Prior Service / Characterizations: RA (8 January 2004 to 24 August 2005) / HD e. Overseas Service / Combat Service: SWA / Iraq (NIF-CIB Permanent Orders, dated 25 July 2005, indicates period of service as 13 June 2005, and for participating in ground combat operations under enemy hostile fire to liberate Iraq in support of OIF III.) f. Awards and Decorations: ARCOM; NDSM; GWOTEM; GWOTSM; ASR; CIB; MUC g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Counseling statements for being AWOL; being recommended for enrollment in ASAP; failing to sign-in; failing to comply with ASAP; failing to be at his appointed place of duty at the prescribed time on numerous occasions; being incapacitated for performance of duty due to prior wrongful indulgence in alcohol; being directed to have no contact or relationship with any married woman; failing to obey orders on numerous occasions; and violating his restriction. Report of Result of Trial with its associated documents (charge sheet and offer to plead guilty), reports that the applicant was found guilty of the following charges by a Summary Court- Martial on 21 November 2007: Charge I: Two Specifications of violating Article 86, UCMJ, for being AWOL on two separate occasions on 24 May 2007 to 12 July 2007, and on 16 July 2007 to 5 November 2007. Charge II: Violation of Article 134, UCMJ, for being drunk on duty. The sentence consisted of a reduction to E-2, forfeiture of $867, and 29 days of confinement. Report of Mental Status Evaluation, dated 28 November 2007, providing no diagnosis, cleared the applicant for any administrative actions deemed appropriate by his command. i. Lost Time / Mode of Return: 176 days (AWOL (9 May 2007 to 11 July 2007, for 64 days) and (16 July 2007 to 4 November 2007, for 112 days) / No record on mode of return for first AWOL period. The applicant surrendered to military authorities on 5 November 2007. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 23 May 2019; DD Form 214; discharge orders; Record of Emergency Data; and ERB. DD Form 293 (Application for the Review of Discharge), dated 19 July 2018, with applicant- authored statement; DD Form 214; and three character reference/supporting statements. 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 an upgrade of his under other than honorable conditions discharge to honorable. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The 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 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 contends that an upgrade of his discharge would allow the benefits he deserves, perhaps referring to veterans' benefits. However, eligibility for veterans' 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 related to medical issues, including behavioral health symptoms, such as drinking problems and having nightmares. However, the service record does not support the applicant's contention, and no evidence to support any behavioral health diagnosis has been submitted to corroborate the applicant's medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. However, based on any medical records available to the Board that reflects behavioral health issues, and if the Board determines, based on available record, 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. However, if there is no medical record or any behavioral health diagnosis available to the Board, and if the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., any official behavioral health diagnosis by a competent medical authority), for the Board's consideration because they are not available in the official record. 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 complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service. 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 13 May 2020, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: 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 AR20190010136 1