1. Applicant's Name: a. Application Date: 4 April 2019 b. Date Received: 7 June 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 honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, he is filing for compensation due to PTSD and a back injury sustained in Iraq due to an IED attack, anger issues, knee problems and trouble sleeping. He served honorably from 18 May 1989 to 31 May 2006. In December 2004, he injured his back in an IED attack in Iraq. He dealt with the pain for over a year, and the military doctors gave him pain medication which caused him to oversleep and be late to formations. His unit discharged him for a Pattern of Misconduct and gave him an other than honorable conditions discharge. The applicant states he was not paid during his out processing which took several months. He talked to his platoon to let him off early to work at McDonalds, which was the only income to pay his bills, but his request was denied, forcing him to go AWOL. He never disrespected an NCO or Officer, nor did he go AWOL his entire career until this incident. He did what he had to support his family. He had to get up at 0600 and was not released from his unit until 1700 or 1800. He went straight to McDonalds until 0200 and was not getting enough sleep, and after taking the medication, he was arriving up to two hours late to his unit. The applicant states his AWOL was less than 60 days and does not deserve the other than honorable conditions discharge. He did not leave the Fort Campbell area and his unit knew his whereabouts the entire AWOL period. He was demoted from E-4 to E-1 and had never lost rank in his military career until this incident. He was always a dedicated Soldier and did his military duties as instructed by his chain of command. The applicant states an upgrade to honorable would allow him to receive compensation for his injuries, PTSD, and military service. He is not worried about upgrading his rank, because it is irrelevant unless rank is how the VA pay compensation is determined. In a records review conducted on 13 October 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), 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 General Under Honorable Conditions Characterization of Service. 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 31 May 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 April 2006 (2) Basis for Separation: The applicant was informed of the following reasons: Discreditable conduct and conduct prejudicial to the good order and discipline including persistent and numerous failure to go to appointed place of duty. Each a violation of the UCMJ, Article 86. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 12 April 2006 (5) Administrative Separation Board: On 12 April 2006, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 23 May 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 March 2002 / 3 years b. Age at Enlistment / Education / GT Score: 30 / GED /102 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 11 years, 6 months, 9 days d. Prior Service / Characterizations: RA, 11 May 1989 - 24 August 1990 / HD USAR, 5 April 1998 - 7 April 2004 / HD (Concurrent Service) RA, 7 March 2002 - 12 September 2004 / HD e. Overseas Service / Combat Service: SWA / Iraq (22 June 2004 - 1 June 2005) f. Awards and Decorations: NDSM, GWOTEM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 22 October 2003, for failing to go at the time prescribed to his appointed place of duty on or about 3 September 2003; and, for disobeying a lawful order on or about 19 August 2003. The punishment consisted of a reduction to E-3; (suspended). CG Article 15, dated 21 November 2002, for failing to go at the time prescribed to his appointed place of duty on three occasions between 6 October 2002 and 10 October 2002. The punishment consisted of extra duty for seven days. Report of Mental Status Evaluation, dated 8 February 2006, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant has the mental capacity to understand and participate in the proceedings and was mentally responsible. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 22 days (NIF, 9 May 2006 - 31 May 2006) / NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and letter of support. 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), 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 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. (7) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (8) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 honorable or general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends, he was suffering from PTSD and other medical conditions. The applicant's AMHRR contains no documentation of PTSD diagnosis. Mental Status Evaluation was reviewed by separation authority. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The applicant contends he was taking pain medication for his injuries which caused him to over sleep and be late to formation. He was not being paid and went AWOL because he was not permitted to work. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for veteran's benefits 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 contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The third party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct during his service in the Army. 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. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records. The applicant did not have an in-service diagnosis although extensive involvement with various Army and non-Army agencies related to how he was managing his son's psychiatric care. Post-service, the applicant is service connected for PTSD; however, the C&P exam is void for clarification. (2) Did the condition exist or experience occur during military service? Yes. The applicant is post-service connected for PTSD, documentation is void of anxiety or trauma symptoms in-service, but service-connection infers that symptoms or cause existed or were exacerbated by service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. Liberally considering the evidence, the Board determined the onset of PTSD as relating to the combat deployment; therefore, the applicant's basis for separation is partially mitigated. Specifically, the applicant's post-combat FTRs and avoidance, dishonesty about his whereabouts and taking leave without the proper paperwork in place, would be mitigated; however, the FTRs, unsatisfactory performance, and failure to obey orders from April 2002 to September 2003 are not mitigated as they occurred prior to deployment. Additionally, post- combat misconduct of being married to two women, speeding, and driving with a suspended license due to a lapse in insurance are not mitigated. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that PTSD due to combat is often associated with patterns of misconduct. As a result, the ADRB liberally considered the evidence and found that the cause for separation is partially mitigated by PTSD. The applicant's offenses of the FTRs, unsatisfactory performance, and failure to obey orders from April 2002 to September 2003 are not mitigated as they occurred prior to deployment. Additionally, post-combat misconduct of being married to two women, speeding, and driving with a suspended license due to a lag in insurance are not medically mitigated, as there is no nexus between these behaviors and the BH conditions listed. The board determined that the applicant's PTSD, combat service outweighed the UOTH discharge as too harsh. b. Response to Contention(s): (1) The applicant contends, he was suffering from PTSD and other medical conditions. The applicant did not have an in-service diagnosis although extensive involvement with various Army and non-Army agencies related to how he was managing his son's psychiatric care. Post- service, the applicant is service connected for PTSD; however, the C&P exam is void for clarification. However, the Board determined that PTSD mitigated the avoidance behaviors post- combat as outlined above. (2) The applicant contends he was taking pain medication for his injuries which caused him to over sleep and be late to formation. He was not being paid and went AWOL because he was not permitted to work. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD partially mitigating the applicant's post- combat FTRs and avoidance, dishonesty about his whereabouts and taking leave although paperwork not in place. (3) The applicant contends an upgrade of the discharge would allow veterans benefits. Eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do 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. (4) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. The Board considered, but found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including being married to two women, speeding, and driving with a suspended license due to a lag in insurance, was not sufficiently meritorious to warrant an honorable discharge. c. The Board determined the discharge is inequitable based on the applicant's length, to include combat service, the circumstances surrounding the discharge (OBHI and PTSD diagnoses), and prior period of honorable service. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant had a BH condition of PTSD which mitigated at least part of the applicant's misconduct for post-combat FTRs and avoidance, dishonesty about his whereabouts and taking leave although paperwork not in place. Due to the severity of the post deployment, non-mitigated misconduct of being married to two women, speeding, and driving with a suspended license due to a lag in insurance, the Board did not grant an upgrade to Honorable. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190010751 3