1. Applicant’s Name: a. Application Date: 19 December 2019 b. Date Received: 31 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, that during Airborne School (2006), he suffered a concussion on landing during a jump. The applicant did not report the symptoms or injuries. The applicant has since been diagnosed with a Traumatic Brain Injury (TBI) as well as other mental health issues. b. Board Type and Decision: In a records review conducted on 28 October 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 4 March 2009 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 27 January 2009, the applicant was charged with the violation of the UCMJ, Article 86, for without authority being absent from his place of duty from on or about 6 September 2006 until on or about 20 December 2006; and on or about 9 March 2007 until on or about 26 September 2008. (2) Legal Consultation Date: On 4 February 2009, the applicant voluntarily requested discharge in lieu of trial by court-martial under AR 635-200, Chapter 10, for charges preferred against him under the Uniform Code of Military Justice for violation of Article’s 86, UCMJ for going AWOL. (3) Basis for Separation: Pursuant to the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 13 February 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 February 2006 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 22 / GED / 96 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B1P, Infantryman / 1 year, 2 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Form’s 4187 (Personnel Action) which indicate the applicant’s duty status changed from; Present for Duty (PDY) to Absent Without Leave (AWOL), effective 6 September 2006; AWOL to PDY, effective 20 December 2006; PDY to AWOL, effective 9 March 2007; AWOL to Dropped from the Rolls (DFR), effective 10 April 2007; DFR to PDY, effective 29 September 2008 i. Lost Time / Mode of Return: Absent Without Leave for a total of 674 days: 105 days (6 September 2006 to 19 December 2006) / mode of return unknown and 569 days (9 March 2007 to 28 September 2008) / mode of return unknown. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated, 24 January 2007, indicates the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels. Report of Mental Status Evaluation, dated 6 October 2008, indicates that the applicant was diagnosed with R/O Mood Disorder NOS. It was noted that the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels; and the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. Report of Behavioral Health Evaluation, dated 27 October 2008, indicates the applicant was diagnosed with an Axis I for Adjustment D/O with Anxiety and Depression. It was noted that the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. Medical documents submit by the applicant from the St. Cloud Neurobehavioral Associates, PA, dated 19 December 2019, from T.R., PsyD, LP, Clinical Neuropsychologist, who indicated that he felt that it was at least as likely as not that the applicant sustained a mild traumatic brain injury because of his fall in 2006 and that this may have contributed to some personality changes and poor decision making in the time after his injury. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; letter and Neuropsychological Evaluation from St. Cloud Neurobehavioral Associates, PA, signed by a Clinical Neuropsychologist. 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally are appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. 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 “KFS” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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 waivable and nonwaivable separations. Table 3-1 defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 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 AMHRR of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635- 200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant seeks relief contending, in effect, that during Airborne School (2006), he suffered a concussion on landing during a jump. The applicant did not report the symptoms or injuries. The applicant has since been diagnosed with a Traumatic Brain Injury (TBI) as well as other mental health issues. The applicant’s contentions were noted; the applicant’s service record indicates the applicant committed discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. It should be noted the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. It should be noted; medical documents submitted by the applicant from the St. Cloud Neurobehavioral Associates, PA, dated 19 December 2019, indicate it was at least as likely as not that the applicant sustained a mild traumatic brain injury because of a fall in 2006 and that this may have contributed to some personality changes and poor decision making in the time after his injury. However, a Report of Mental Status Evaluation, dated 6 October 2008, indicates the applicant was diagnosed with R/O Mood Disorder NOS. It was noted that the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels; and the applicant was psychiatrically cleared for any administrative action deemed appropriated by his command. Also, a second Report of Behavioral Health Evaluation, dated 27 October 2008, indicates the applicant was diagnosed with an Axis I for Adjustment D/O with Anxiety and Depression. It was noted that the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. 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 that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder, Depression with Anxety, Anxiety Disorder NOS, and likely Personality Disorder features. Post-service, the applicant submitted records to the VA listing a variety of diagnoses including PTSD and TBI; however, the VA has not concurred; the VA has not diagnosed the conditions or service connected the applicant. The applicant asserts a TBI contributed to the AWOL. (2) Did the condition exist or experience occur during military service? Yes. The Board Medical Advisor found the applicant was diagnosed in-service with an Adjustment Disorder, Depression with Anxiety, Anxiety Disorder NOS, and likely Personality Disorder features. The applicant asserts a TBI. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that AWOL is not a natural progression or sequela of Adjustment, Depression with Anxiety, or Anxiety NOS disorders. Moreover, these conditions do not render an individual unable to make a conscious choice understanding the consequences. In terms of PTSD or TBI, the VA has reviewed records and provided their own assessments determining the applicant does not have these conditions. Furthermore, although the applicant submitted a neuropsychological evaluation and follow up letter in support of applicant’s TBI assertion, they do not support the applicant had an impairing TBI or contain a statement specific to the applicant supporting a head injury caused the misconduct. (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 Adjustment Disorder, Depression with Anxiety, Anxiety Disorder NOS, and likely Personality Disorder features outweighed the basis for applicant’s separation –two long term AWOLs – for the aforementioned reason(s). b. Response to Contention(s): The applicant seeks relief contending, in effect, that during Airborne School (2006), applicant suffered a concussion on landing during a jump. Applicant did not report their symptoms or injuries. Applicant has since been diagnosed with a Traumatic Brain Injury (TBI) as well as other mental health issues. The Board considered this contention and determined the applicant’s records show a TBI occurred, however the TBI does not mitigate the applicant’s AWOL basis for separation. The applicant was properly and equitably discharged. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s Adjustment Disorder, Depression with Anxiety, Anxiety Disorder NOS, likely Personality Disorder features, and asserted TBI did not excuse or mitigate the offenses of two long term AWOLs. 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. (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 / Separation Order: No b. Change Characterization to: No Change 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 AR20200007060 1