1. Applicant's Name: a. Application Date: 11 January 2020 b. Date Received: 16 January 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, prior to being diagnosed in 2017, the applicant unknowingly battled the mental health illness inwardly causing for an involuntary separation from the military. It led to occupational and social impairment through inappropriate behavioral mood swings and inability to adapt to a work setting environment. In 2017, the applicant was diagnosed with service-connected PTSD and has been receiving treatment through medication and counseling. During the treatment, the applicant has been able to start and establish a domestic limited liability company and completed a two-year vocational training at an institute. b. Board Type and Decision: In a records review conducted on 2 December 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD diagnosis mitigating the applicant's failures to report (FTR) and avoidance behavior (AWOL) and the applicant's length and quality of service, to include combat service, and post-service accomplishments outweighed the unmitigated misconduct of minor assault. 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), with a corresponding separation code of JKN. 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 / General (Under Honorable Conditions) b. Date of Discharge: 30 January 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 7 January 2008 (2) Basis for Separation: The applicant was informed of the following reasons: Between 12 and 13 June 2007, the applicant was absent from the unit. On 24 July 2007, the applicant unlawfully struck SPC B. R. R. in the face and PVT V. F. L. on the thumb with an empty powder canister. On 2 and 5 September 2007, the applicant failed to report to the appointed place of duty. The applicant consistently failed the attempted rehabilitative efforts by the chain of commander and caused significant disruption to the unit and its mission. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 January 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 January 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 January 2004 / 6 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13B10, Cannon Crewmember / 4 years, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SWA / Iraq (28 November 2005 - 11 November 2006) f. Awards and Decorations: ARCOM, AAM-2, NDSM, GWOTSM, ICM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Nine Developmental Counseling Forms for various acts of misconduct. CG Article 15, dated 16 July 2007, for being AWOL on 12 June 2007, and remained absent until 13 June 2007. The punishment consisted of forfeiture of $303 pay, and extra duty and restriction for 14 days. Two Personnel Action forms reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 12 June 2007, and from "AWOL" to "PDY," effective 13 June 2007. CG Article 15, dated 27 August 2007 (with Commander's Inquiry of the incident), for unlawfully striking SPC B. R. R. in the face and PVT V. F. L. on the thumb with an empty powder canister. The punishment consisted of forfeiture of $303 pay, and extra duty and restriction for 14 days (suspended). CG Article 15, dated 17 October 2007, for failing to go to appointed place of duty at the prescribed time on 2 and 5 September 2007. The punishment consisted of forfeiture of $303 pay, and extra duty and restriction for 14 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 28 September 20007, reflects the suspended portion of the punishment, restriction for 14 days, imposed on 27 August 2007, was vacated for violation of Article 86, failing to go to appointed place of duty at the prescribed time on 2 September 2007. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 18 October 2007, reflects the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible, could understand and participate in the proceedings. The applicant was diagnosed with an Adjustment Disorder with Depressed Mood. Report of Medical History, dated 31 October 2007, the applicant noted receiving counseling and treatment for depression. Chronological Record of Medical Care, dated 31 October 2007, reflects the applicant was diagnosed with, in pertinent part, Major Depression recurrent moderate, Dysthymic Disorder (Depressive Neurosis), and Alcohol Dependence with continuous drinking behavior. The applicant provided a copy of a VA letter with medical records, dated 4 June 2021, reflecting the applicant was diagnosed with PTSD and Major Depressive Disorder-mild, and throughout the medical record, the following were noted: VA treatment for history of chronic/persistent depression and PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and VA letter with medical records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, during the treatment, the applicant was able to start up and establish a domestic limited liability company and completed a two-year vocational training at an institute. 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) 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. (5) 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. (6) 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. SUMMARY 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. The applicant's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends being diagnosed with service-connected PTSD by the VA. The applicant provided several medical documents indicating the applicant receiving treatment for diagnoses of PTSD and Major Depressive Disorder. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 18 October 2007, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE reflected a diagnosis of an adjustment disorder with depressed mood. The MSE / BHE was considered by the separation authority. The applicant contends having been able to start and establish a domestic limited liability company and completing a two-year vocation training while being treated by VA. Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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 AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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. Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Major Depressive Disorder (MDD), Dysthymic Disorder, mild TBI, PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found diagnosis of MDD, Dysthymic DO and mild TBI were made while applicant was on active duty and the applicant is 70% service-connected by the VA for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant has two BH conditions, PTSD and mild TBI, which mitigate some of the misconduct. As there is an association between PTSD/TBI and avoidant behaviors, there is a nexus between these diagnoses and FTRs and being AWOL. However, there is no medical mitigation provided for assault of another individual in that PTSD and mild TBI do not affect one's ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board concurred with the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's MDD, Dysthymic DO, mTBI, or PTSD outweighed the unmitigated assault because of the violent nature of the misconduct. b. Response to Contention(s): (1) The applicant contends being diagnosed with service-connected PTSD by the VA. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the applicant's PTSD, and other BH conditions, did not fully mitigate the misconduct. But the remaining misconduct of assault, which the Board considered minor after reviewing the circumstances surrounding the event, was outweighed after considering the totality of the applicant's record, to include length and quality of service, to include combat service, and post-service accomplishments. (2) The applicant contends having been able to start and establish a domestic limited liability company and completing a two-year vocation training while being treated by VA. The ADRB 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 must 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. In this case, the Board considered this contention and determined that the applicant's post-service accomplishments, in part, contributed to the final decision to grant relief in that the remaining unmitigated misconduct could be characterized as a Minor Infraction instead of a Pattern of Misconduct. c. The Board determined the discharge is inequitable based on the applicant's PTSD diagnosis mitigating the applicant's failures to report (FTR) and avoidance behavior (AWOL) and the applicant's length and quality of service, to include combat service, and post-service accomplishments outweighed the unmitigated misconduct of minor assault. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and mild TBI mitigated the applicant's misconduct of FTRs and AWOL, and the totality of the applicant's record, to include length and quality of service, to include combat service, and post-service accomplishments, outweighed the remaining misconduct of assault. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) since the remaining misconduct of assault was determined to be minor after the Board considered the totality of the applicant's service record and post-service accomplishments, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation and the mitigating PTSD is service-limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 14-12a 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 AR20200003588 1