1. Applicant's Name: a. Application Date: 6 July 2020 b. Date Received: 14 July 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, a reentry (RE) code and narrative reason change. The applicant seeks relief contending, in effect, post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI) led to the applicant's poor behavior. The applicant is proud of the combat service and hopes to obtain a fully honorable discharge in hopes being able to use the GI Bill. b. Board Type and Decision: In a records review conducted on 13 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's OBH and PTSD mitigated the applicant's basis of separation - failure to be at the appointed place of duty on multiple occasions. 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 10 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, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 21 December 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 November 2009 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant on divers' occasions failed to be at the appointed place of duty at the time prescribed. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: On 25 November 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 4 December 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 June 2008 / 6 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91H10, Track Vehicle Repairer / 3 years, 6 months, 6 days d. Prior Service / Characterizations: RA, 16 June 2006 - 1 June 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (9 March 2008 - 14 March 2009) f. Awards and Decorations: ARCOM, VUA, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 6 February 2009, reflects the applicant made a false official statement on or about 29 January2009 and the applicant was derelict in the performance of duties on or about 29 January 2009. The punishment consisted of reduction to private first class/E-3, forfeiture of $409, both suspended, to be automatically remitted if not vacated before 4 August 2009; and extra duty and restriction for 14 days. Summarized Article 15, dated 20 July 2009, reflects the applicant failed to go at the prescribed time to the appointed place of duty on two separate occasions and was derelict in the performance duties on or about 13 January 2009. The punishment consisted of extra duty and restriction for 14 days. CG Article 15, dated 11 September 2009, reflects the applicant failed to go at the prescribed time to the appointed place of duty on two separate occasions. The Punishment consisted of reduction to private first class/E-3 and extra duty for 14 days. A Report of Mental Stratus Evaluation (MSE), dated 22 October 2009, reflects the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was psychologically cleared for administrative separation. The applicant was counseled on multiple occasions for various forms of misconduct. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): The applicant provides a VA Rating Decision, dated 13 January 2020, which reflects the applicant had an evaluation of PTSD with TBI (previously rated as PTSD), which was rated 30 percent disabling, was increased to 100 percent effective 26 June 2019. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, VA Rating Decision, DD Form 214, VA Letter 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) 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 14-2b 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. 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's Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable, a reentry (RE) code and narrative reason change. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general (under 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." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant requests the RE code be changed. The applicant was separated under the provisions AR 635-200, chapter 14, paragraph 12b, due to pattern of misconduct, with a general (under honorable conditions) discharge and a RE code of "3." Army Regulation 601-210 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. 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. The applicant contends PTSD and a TBI led to the applicant's poor behavior. The applicant's AMHRR is void of a PTSD or TBI diagnosis. The AMHRR shows the applicant underwent a MSE on 22 October 20098 August 2015, which indicates the had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was psychologically cleared for administrative separation. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The applicant provides a VA Rating Decision, dated 13 January 2020, which reflects the applicant had an evaluation of PTSD with TBI (previously rated as PTSD), which was rated 30 percent disabling and was increased to 100 percent effective 26 June 2019. The applicant is proud of the combat service and hopes to obtain a fully honorable discharge in hopes being able to use the GI Bill. The Board will consider the applicant service accomplishments and the quality of service according to the DODI 1332.28. Eligibility for veteran's benefits to include educational benefits under the Post 9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant provided oral argument and statements in support of the contentions provided in written submissions and in support of previously submitted documentary evidence. c. Counsel / Witness(es) / Observer(s): N/A 10. 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; PTSD. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found Adjustment DO and Depression were diagnosed in service. VA service connection for PTSD (100% service-connected) establishes it occurred while on active duty. (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 has two BH conditions, PTSD and Depressive DO NOS, which mitigate some of the misconduct. As there is an association between PTSD/Depressive DO NOS and avoidance behaviors, there is a nexus between the diagnosis of PTSD and multiple incidents of FTR. As there is an association between PTSD/Depressive DO NOS and impaired work performance, there is a nexus between the diagnosis of PTSD/Depressive DO NOS and being derelict in the performance of duties. PTSD and Depressive DO NOS do not mitigate making a false official statement given that these conditions do not impair one's ability to tell right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with 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 in-service diagnosis of Adjustment DO and Depression and is 100% service-connection for PTSD (established while on active duty) by the VA. outweighed the basis of separation - pattern of misconduct (failure to be at the appointed place of duty on multiple occasions). b. Response to Contention(s): The applicant contends PTSD and a TBI led to the applicant's poor behavior. The Board determined that this contention was valid and voted to upgrade the characterization of service due to the applicant's OBH and PTSD outweighing the applicant's pattern of misconduct the basis for separation. c. The Board determined that the characterization is inequitable based on the applicants in service diagnosis of Adjustment DO and Depression and is 100% service-connection for PTSD mitigating the applicant's pattern of misconduct. 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. 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 Honorable because the applicant's Adjustment DO, Depression and TBI/PTSD mitigated the accepted basis for separation - multiple FTRs. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the narrative reason 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. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 AR20200008935 1