1. Applicant's Name: a. Application Date: 13 May 2019 b. Date Received: 20 November 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the applicant's discharge should be upgraded on the basis of inequity because the pattern of misconduct that led to the discharge was a direct result of his PTSD, and if relevant current policies-the Hagel, Carson, and Kurta Memoranda and 10 U.S.C. § 1553 (d)-had been followed at the time of the applicant's discharge, there is substantial doubt he would have received the same discharge. Counsel states: The applicant's PTSD excuses and mitigates his General discharge; The applicant's PTSD is due to and was further aggravated during his military service; The applicant's PTSD mitigates his General discharge because the misconduct was a direct result of these conditions and experiences; The applicant's condition and experience outweigh the discharge because there was a causal relationship between his combat deployment, subsequent PTSD and the misconduct; and, The applicant's discharge should be upgraded on the basis of impropriety because, had the Army observed its own regulations, the applicant should have received substantially more counseling, which would have mitigated the PTSD. Since his discharge, the applicant has been properly diagnosed with PTSD and receives the appropriate counseling to deal with this disease, his secondary alcohol abuse is in remission. The applicant no longer drinks and would like to return to school to complete his degree in Political Science. In order to properly re-adapt to civilian life, it would greatly benefit him for his character of discharge to be upgraded to honorable. Counsel further details the contentions in an allied legal brief provided with the application. 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 Alcohol Abuse, continuous; Dysthymic Disorder (Depressive Neurosis). The applicant is 80% service connected, 70% for PTSD. The VA has also diagnosed the applicant with PTSD. 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 28 October 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (service-connected PTSD diagnosis). 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 (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 October 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 12 October 2007 (2) Basis for Separation: The applicant was informed of the following reasons: He was AWOL from 15 June 2007 until 31 July 2007. Also, he was found to be above the acceptable BAC for duty and he disobeyed a lawful order from a noncommissioned officer. This type of misconduct will not be accepted in the United States Army. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 13 October 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 October 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2004 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 10 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (12 December 2005 - 1 December 2006) f. Awards and Decorations: NDSM, GWOTSM, ICM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 9 May 2007, for willfully disobeyed a lawful order to not ride a motorcycle until he had all the proper documentation (between 23 March 2007). The punishment consisted of a reduction to E-3; forfeiture of $767 pay per month for two months; and, extra duty and restriction for 45 days. FG Article 15, dated 14 September 2007, for being AWOL (between 15 June 2007 and 31 July 2007). The punishment consisted of a reduction to E-1; forfeiture of $650 pay per month for two months; extra duty and restriction for 30 days; and, written reprimand. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 15 June 2007; From "AWOL" to "Dropped From Rolls (DFR)," effective 16 July 2007; and, From "DFR" to "PDY," effective 31 July 2007. i. Lost Time / Mode of Return: 46 days (AWOL, 15 June 2007 - 31 July 2007) / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's active duty medical treatment record reflects the applicant had been treated for depression and suicidal ideation. Mental Status Evaluation, dated 10 October 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible with clear a thinking process. The applicant was diagnosed with: Dysthymic Disorder. The applicant provided a copy of his VA Rating Decision, dated 22 June 2017, which reflects the applicant was rated 70 percent disability for PTSD with unspecified depressive disorder, and alcohol use disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; legal brief; VA Form 21- 0781; VA Form 21-4138; VA medical treatment records; VA Benefits Decision letter; VA Rating Decision Letter; four letters of support; Supplemental Guidance to Military Boards; Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance; Clarifying Guidance to Military Discharge Review Boards; Personal statement; two DA Forms 4187; Orders 298-02; Attorney Letter to Judge; Behavior Template; Standard Form 600; DD Form 689. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been receiving the appropriate counseling to deal with PTSD, and his secondary alcohol abuse is in remission. The applicant no longer drinks. 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 12c, misconduct (serious offense). 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, through counsel, requests an upgrade of his general (under honorable conditions) discharge to honorable and a narrative reason change. The applicant's record of service, 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. Counsel 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. Counsel contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ"." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Counsel contends the applicant was suffering from the symptoms of PTSD, which affected his behavior and led to his discharge. The applicant's service record contains documentation that supports in service treatment of depression and suicidal ideation and a diagnosis of Dysthymic Disorder. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 10 October 2007, the applicant underwent a mental status evaluation, which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears, the applicant's chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. Counsel contends the applicant should have received substantially more counseling, which would have mitigated the PTSD. 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 character of the applicant's discharge is commensurate with his overall service record. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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. Counsel contends the applicant desires to pursue his degree, and in effect, an upgrade of his discharge would allow educational benefits through the use of the GI Bill. However, eligibility for veteran's 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. Counsel contends the applicant had good service, which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The third party statements provided with the application speak of the applicant's change of behavior after his deployment. They all recognize his good character prior to his service in the Army; 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 28 October 2020, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service, to include combat service, and the circumstances surrounding the discharge (service-connected PTSD diagnosis). 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 AR20200002091 6