1. Applicant's Name: a. Application Date: 5 May 2020 b. Date Received: 19 May 2020 c. Counsel: 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 general (under honorable conditions). The applicant seeks relief contending, in effect, the misconduct was the result of Post-Traumatic Stress Disorder (PTSD), Major Anxiety, and Major Depression during combat service. b. Board Type and Decision: In a records review conducted on 14 June 2023, and by a 3-2 vote, the Board determined that the characterization of service was inequitable based on the applicant's Post Traumatic Stress Disorder providing partial mitigation for the applicant's pattern of misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 27 July 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 11 June 2005 (2) Basis for Separation: The applicant was informed of the following reasons: for receiving a Summary Court-Martial on 4 May 2005 for leaving his place of duty and disrespecting a Commissioned Officer; and receiving a Field Grade Article 15 on 3 April 2005 for missing movement. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 11 June 2005 (5) Administrative Separation Board: The applicant waived consideration and personal appearance before an administrative separation board. (6) Separation Decision Date / Characterization: 4 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 September 2002 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-4 / 74D10, Chemical Operations Specialist / 2 years, 10 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait/Iraq (5 January 2005 to 15 July 2005) (It should be noted the DD Form 214 under review indicates the applicant served in Kuwait/Iraq; however, the enlisted record brief (ERB), dated 18 July 2005 does not refer to this period of service in "Section I - Assignment Information." f. Awards and Decorations: NDSM, GWOTEM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: DA Form's 4187 changing the applicant's duty status as following: Present for Duty (PDY) to Absent Without Leave (AWOL), effective 6 January 2005; and AWOL to PDY, effective 10 January 2005 FG Article 15 dated 3 April 2005, for on or about 8 January 2005, through neglect miss the movement to Operation Iraqi Freedom III, with which the applicant was required in the course of duty to move. This was in violation of Article 87, UCMJ. The punishment consisted of reduction to E-2, forfeiture of $742.00 pay per month for two months (suspended), and extra duty and restriction for 45 days. Summary Court-Martial dated 3 May 2005; the applicant was preferred and underwent Summary Court-Martial proceedings for Failure to Report (Article 86), Disrespect to a Commissioned Officer (Article 89), Assaulting a Noncommissioned Officer (Article 91), and Disrespect by Deportment to a Noncommissioned Officer (Article 91). The applicant was found Guilty of Failure to Report and Disrespect to a commissioned Officer and was found Not Guilty for Assaulting a Noncommissioned Office and disrespect by Deportment to a Noncommissioned Officer. The punishment imposed on 11 May 2005 was forfeiture of $989.00 pay per month for one month. Several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: Absent Without Leave 4 days (6 January 2005 to 9 January 2005) / mode of return unknown. j. Behavioral Health Condition(s): None (1) Applicant provided: (2) AMHRR Listed: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and Letter from the Human Resource Service Center, dated 30 April 2019. 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 14-12b, 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 general (under honorable conditions). The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates separation action was initiated against the applicant for receiving a Summary Court-Martial on 4 May 2005 for leaving his place of duty and disrespecting a Commissioned Officer: and receiving a Field Grade Article 15 on 3 April 2005 for missing movement. Subsequently, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." The applicant seeks relief contending the misconduct was the result of Post-Traumatic Stress Disorder (PTSD), Major Anxiety, and Major Depression during combat service. The applicant's contentions were noted; however, the service record contains no evidence of Post-Traumatic Stress Disorder, Major Anxiety, and Major Depression diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition at the time of discharge. 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 DoD and VA medical records and found that the applicant's record does not reflect that the applicant had any BH diagnoses. However, the applicant asserts Post Traumatic Stress Disorder, anxiety, and depression, 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 medical records are void of a diagnosis. However, the applicant asserts PTSD, anxiety, and depression. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that if the asserted PTSD is taken at face value it would mitigate the applicant's failure to report and disrespect offenses given the nexus between trauma and avoidance/difficulty with authority. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's asserted PTSD outweighed the applicant's medically unmitigated offense of missing movement. b. Response to Contention(s): (1) The applicant seeks relief contending the misconduct was the result of Post Traumatic Stress Disorder (PTSD), Major Anxiety, and Major Depression during combat service. The Board liberally considered this contention and determined that relief is warranted due to the applicant's PTSD outweighing the failure to report and disrespect offenses. However, the Board determined that the available evidence did not support a conclusion that the applicant's asserted PTSD, anxiety, and depression outweighed the applicant's medically unmitigated offense of missing movement. Therefore, the Board granted partial relief in the form of an upgrade to General characterization. c. The Board determined that the characterization of service was inequitable based on the applicant's Post Traumatic Stress Disorder providing partial mitigation for the applicant's pattern of misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General because the applicant's PTSD partially outweighed some offenses included in the applicant's pattern of misconduct. Thus, the prior characterization is no longer appropriate. (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: 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 AR20200007499 1