1. Applicant's Name: a. Application Date: 25 November 2019 b. Date Received: 2 December 2019 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 requests an upgrade to honorable. The applicant seeks relief contending, in effect, there were symptoms of undiagnosed traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) from a combat deployment. The leadership did not know or care about the signs and symptoms. b. Board Type and Decision: In a records review conducted on 24 August 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's length, to include combat service, and the circumstances surrounding the discharge (TBI 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), 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 24 October 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: The applicant received two Article 15s for failure to go or leaving place of duty on multiple occasions; the applicant pled guilty at a Summary Court-Marial on 7 August 2007 for (Art 86) Failure to go or leaving place of duty on multiple occasions; (Art 91 X 4) Disrespect to a noncommissioned officer; and (Art 92 X 3) Derelict in the performance of duty. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The applicant declined the opportunity to consult with counsel. (5) Administrative Separation Board: The applicant waived consideration of the case by an administrative separation board. (6) Separation Decision Date / Characterization: 8 October 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 February 2003 / 3 years (Applicant extended for 8 months on 3 October 2003) b. Age at Enlistment / Education / GT Score: 20 / GED / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 63B10, Wheeled Vehicle Mechanic / 5 years d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Germany, SAW / Iraq (9 February 2004 - 6 February 2005) f. Awards and Decorations: NDSM, GWOTSM, GWOTEM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 3 March 2006, reflects the applicant failed to go at the prescribed time to the appointed place of duty on eight separate occasions. The punishment consisted of reduction to private first class and extra duty and restriction for 14 days. FG Article 15, dated 3 June 2007, reflects the applicant was absent without authority from the unit from on or about 7 May 2007 to on or about 21 May 2007 and failed to go at the prescribed time to the appointed place of duty on six separate occasions. The punishment consisted of reduction to private/E-2; forfeiture of $799 pay for one month, suspended, to be automatically remitted if not vacated before 4 December 2007; and extra duty for 14 days. Department of the Army Report of Result of Trial reflects in a Trial by Summary Court-Martial on 7 August 2007, the applicant pled guilty and was found guilty of (Art 86) Failure to go or leaving place of duty on multiple occasions; (Art 91 X 4) Disrespect to a noncommissioned officer; and (Art 92 X 3) Derelict in the performance of duty. The sentence consisted of reduction to private/E-1; forfeiture of $934; and confinement for 30 days. The applicant received two Developmental Counseling Forms for failing to shave and initiation of separation action. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: A Report of Metal Status Evaluation (MSE), dated 6 August 2007, reflects the applicant had the mental capacity to understand and participate in the proceedings. The MSE states the applicant had a personal history which was suggestive of Antisocial Personality Disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 1380 (U.S. Field Medical Card), Standard Form 600 (Chronological Record of Medical care) 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), 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) Chapter 15 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 memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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 requests an upgrade to honorable. The applicant contends there were symptoms of undiagnosed TBI and PTSD from a combat deployment. The leadership did not know or care about the signs and symptoms. The applicant's AMHRR is void of a PTSD or TBI diagnosis. The record shows the applicant underwent a MSE on 6 August 2007, which indicates the applicant had the mental capacity to understand and participate in the proceedings. The MSE states the applicant had a personal history which was suggestive of Antisocial Personality Disorder. The separation authority considered the MSE. 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. 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, applicant's statement, and/or civilian provider documentation and found the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant incurred the injury of TBI while in the military. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, TBI. Record review indicates that applicant's difficulties with awakening from sleep began after he incurred his TBI in Oct 2004. While uncommon, TBI can have long-term effects on sleep-wake cycles which, in the applicant's case, resulted in his difficulty with awakening on time, a situation which directly related to his multiple failures to report. As there is also an association between avoidant behaviors and irritability with TBI, there is a nexus between applicant's combat-related TBI and his period of AWOL and disrespect towards his NCO. (4) Does the condition or experience outweigh the discharge? Yes. The Board considered the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's conditions outweigh the AWOL and disrespect basis of separation. b. Response to Contention(s): The applicant seeks relief contending, in effect, there were symptoms of undiagnosed traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) from a combat deployment. The Board determined this contention was valid after review of the applicant's DOD and VA health records. It revealed the applicant was diagnosed in service with combat related TBI. In this case, the Board determined that the discharge was inequitable and voted to upgrade the characterization. c. The Board determined the discharge is inequitable based on the applicant's length, to include combat service, and the circumstances surrounding the discharge (TBI 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), with a corresponding separation code of JKN. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had a BH condition which mitigated the applicant's misconduct of AWOL and disrespect. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, 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. 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 AR20200006866 1