1. Applicant's Name: a. Application Date: 1 February 2020 b. Date Received: 10 February 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 under other than honorable conditions. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, the misconduct which led to the separation was related to the applicant's post-traumatic stress disorder (PTSD) after a deployment to Afghanistan. The PTSD caused the applicant to suffer from anger, depression, withdrawals, and anxiety. The applicant has been service-connected by VA for anxiety and is currently being treated for anxiety and PTSD by VA. b. Board Type and Decision: In a records review conducted on 1 February 2023, and by a 5-0 vote, the Board determined the characterization is inequitable based on the applicant's length and quality of service, to include combat service, prior period of honorable service, and the partial medical mitigation for Anxiety Disorder outweighing the applicant's misconduct of Disobeying a Lawful Order, Disrespect to a Superior Officer, wrongful use of Marijuana, and AWOL and warranting a partial upgrade to the characterization. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code are proper and equitable and voted not to change it. 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 4 February 2003 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 January 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant disobeyed a commissioned officer, disrespected a noncommissioned officer, and was absent without leave (AWOL). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 4 December 2009 (5) Administrative Separation Board: The applicant waived the right to have the case heard by an administrative separation board. (6) Separation Decision Date / Characterization: 10 February 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 April 2006 / 4 years b. Age at Enlistment / Education / GT Score: 19 / GED / 102 c. Highest Grade Achieved / MOS / Total Service: E-5 / 92F10, Petroleum Supply Specialist / 7 years, 13 days d. Prior Service / Characterizations: RA, 4 February 2003 - 25 April 2006 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (1 November 2008 - 29 January 20009) f. Awards and Decorations: ACM-CS, NDSM, AGCM, GWOTSM, KDSM, NCOPDR, ASR, Driver and Mechanic Badge-Driver-Wheeled Vehicle(s) Clasp g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 30 April 2008, reflects the applicant wrongfully used marijuana between on or about 27 January 2008 and on or about 26 February 2008. The punishment consisted of reduction to specialist; forfeiture of $1,019 pay per month for two months; extra duty for 45 days; and restriction or 45 days, suspended, to be automatically remitted if not vacated before 28 July 2008. On 2 July 2008, the suspension of the punishment of restriction for 45 days was vacated due to the applicant failure to go at the prescribe time to the appointed place of duty on or about 5 June 2008. FG Article 15, dated 21 September 2009, reflects the applicant was disrespectful in language towards a noncommissioned officer on or about 30 July 2009; assaulted a commissioned officer by raising a hand towards the superior officer on or about 29 July 2009; and disobeyed a commissioned officer on or about 30 July 2009. The applicant demanded a trial by court-martial. Summary Court-Martial, dated 4 December 2009, reflects the applicant was found guilty of being AWOL, disobeying a commissioned officer, and disrespecting a noncommissioned officer. The punishment consisted of confinement for 30 days; reduction to private/E-1; and forfeiture of $933 pay for one month. A Report of Behavioral Health Evaluation (BHE), dated 29 December 2009, reflects the applicant had he mental capacity to understand and participate in the proceedings and was mentally responsible. i. Lost Time / Mode of Return: AWOL x3 days (23 October 2009 - 25 October 2009) / Returned j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides VA medical records which reflects the applicant has a PTSD diagnosis. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293-2, Letters of support-2, Medical documents 6. POST SERVICE ACCOMPLISHMENTS: Non 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 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. (6) 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. (7) 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. 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's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant contends the misconduct which led to the separation was related to the applicant's PTSD after a deployment to Afghanistan. The applicant's AMHRR contains no documentation of PTSD diagnosis. The record shows the applicant underwent a BHE 29 December 2009, which indicates the applicant had he mental capacity to understand and participate in the proceedings and was mentally responsible. The BHE was considered by the separation authority. The applicant provides VA medical records which reflects the applicant has a PTSD diagnosis. 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 Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Anxiety Disorder (AD). Additionally, the applicant asserts PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is 30% service-connected for AD and applicant asserts PTSD influenced behavior. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant had a diagnosis of Cannabis Related Disorder and while in service was recommended for ASAP enrollment, but records are void ASAP participation. The only other in-service BH-related encounters appear related to visits for Chapter MSEs on 9 May 2008 and 29 December 2009. A VA C&P Examination dated September 2017, shows the applicant was diagnosed with anxiety disorder and the examiner deemed the diagnosis related to being shot at during deployment and having to be on constantly on alert. The applicant reportedly smoked cannabis to address symptoms associated with military stressors. As there is an association between Anxiety Disorder and substance abuse, there is a nexus between the applicant's diagnosis of Anxiety and the misconduct characterized by cannabis use. Also, as there is an association between anxiety disorder and avoidance, there is a nexus between the applicant's anxiety disorder and the misconduct characterized by AWOL. However, misconduct characterized by disrespect of an NCO and disobeying an officer are not natural sequela for anxiety disorder as the disorder does not preclude the applicant from knowing the difference between right and wrong and adhering to the right. The applicant's PTSD has not been service-connected and the timeline of diagnosis and impacted treatment cannot be determined with the available evidence. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration, the Board considered the opinion of the Board's Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant's AD or asserted PTSD outweighed the unmitigated basis for applicant's separation - disrespect of an NCO and disobeying an officer - for the aforementioned reason(s). b. Response to Contention: The applicant seeks relief contending, in effect, the misconduct which led to the separation was related to the applicant's PTSD after a deployment to Afghanistan. The Board considered this contention and the totality of the applicant's record. As there is an association between Anxiety Disorder and substance abuse, there is a nexus between the applicant's diagnosis of Anxiety and the misconduct characterized by cannabis use. Also, as there is an association between anxiety disorder and avoidance, there is a nexus between the applicant's anxiety disorder and the misconduct characterized by AWOL. However, misconduct characterized by disrespect of an NCO and disobeying an officer are not natural sequela for anxiety disorder as the disorder does not preclude the applicant from knowing the difference between right and wrong and adhering to the right. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General, Under Honorable Conditions. In addition, the applicant's post-service PTSD is not service- connected, so the weight of the diagnosis helps little weight in comparison, since the details of the experience and treatment cannot be determined with the evidence available. c. The Board determined the characterization is inequitable based on the applicant's length and quality of service, to include combat service, prior period of honorable service, and the partial medical mitigation for Anxiety Disorder outweighing the applicant's misconduct of Disobeying a Lawful Order, Disrespect to a Superior Officer, wrongful use of Marijuana, and AWOL and warranting a partial upgrade to the characterization. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General, Under Honorable Conditions. However, the applicant may request a personal appearance hearing to address further issues before the Board. 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's Anxiety Disorder mitigated the applicant's misconduct of marijuana abuse and AWOL, but the remaining misconduct of disrespect of an NCO and disobeying an officer were outweighed by the totality of the applicant's service record to include length and quality of service, to include combat service, and prior period of honorable service. Thus the prior characterization is no longer appropriate. The Board found that the applicant's service, given the nature of the misconduct, was not sufficiently meritorious to warrant an honorable discharge (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, 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 / Separation Order: 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 AR20200004207 1