* Applicant's Name: a. Application Date: 29 June 2020 b. Date Received: 21 July 2020 c. Counsel: None * 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. The applicant seeks relief contending, in effect, the general (under honorable conditions) discharge was inequitable because the misconduct led to the discharge would not have occurred but for the mental and physical health conditions which were not adequately addressed in service. If the guidance contained in the Kurta Memo had been reviewed at the time of the applicant's discharge, there is substantial doubt the applicant's discharge would have been the same under this policy, which requires liberal consideration of the applicant's service-connected bipolar II disorder with mood incongruent psychotic features as a factor excusing or mitigating the conduct which led to the discharge. The applicant's discharge status should therefore be upgraded too honorable. The applicant's general (under honorable conditions) discharge was improper because the applicant should have been discharged under a medical separation long before the physical and mental health conditions deteriorated, leading to the misconduct which prompted the general (under honorable conditions) discharge. The applicant would have received a different discharge status if the medical separation process had been completed within a reasonable time. Instead, the applicant remained in limbo during the medical separation process as his physical and mental health declined, and treatment from others within the unit exacerbated the applicant's conditions. The applicant's discharge status should therefore be upgraded to honorable. b. Board Type and Decision: In a records review conducted on 28 June 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Adjustment DO, Anxiety DO NOS, Brief Psychotic DO and VA service connection for Bipolar DO that establishes it occurred during active service outweighing the Misconduct (Serious Offense) - AWOL the basis for separation. 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) * DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 30 April 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 September 2010 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 6 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders 113-0031, dated 23 April 2013, reflect the applicant was to be reassigned to the U.S. Army Transition Point and discharged on 30 April 2013 from the Regular Army. The applicant's DD Form 214 reflects the applicant had not completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12c, with a narrative reason of Misconduct (Serious Offense). The DD Form 214 was authenticated with the applicant's electronic signature. The applicant had lost time for the period 5 November to 12 December 2012. i. Lost Time / Mode of Return: 37 days (AWOL, 5 November 2012 - 12 December 2012 / Surrendered j. Behavioral Health Condition(s): (1) Applicant provided: In-service medical records reflecting, the applicant was admitted on 2 July 2011 to the Saint Francis Medical Center because of acute encephalopathy; reginal complex pain syndrome; apnea; diplopia; and aphasia. The applicant was diagnosed/met the criteria for pain disorder due to both medical and psychological factors and was recommended for referral to an off-post health psychologist for treatment subsequent evaluation prior to undergoing further medical interventions. The records reflect a history or diagnoses of, but not limited to: Reflex sympathetic dystrophy (RSD), right ankle; medical evaluation board (MEB) recommended by podiatry on 6 December 2011. Adjustment Disorder with physical complaints. Sleep disturbances. The applicant was pending an MEB for RSD. Anxiety Disorder not otherwise specified. Ankle pain. Global Assessment Functioning (GAF) 70. Alcohol Dependence. Rule out PTSD, Generalized Anxiety Disorder. Other psychosocial/environmental problems. Injured leg. Chronic pain and degenerative disc disease. Brief psychotic disorder with marked stressors. The applicant reported non-epileptiform seizures exacerbated by psychosocial stressors. Meets the criteria for adjustment disorder with mixed anxiety and depression. Meets the criteria of psychosis, not otherwise specified. Panic disorder; and Occupational, poor psychosocial support. Initial PTSD - DSM V Disability Benefits Questionnaire, dated 10 August 2015, reflecting the applicant was diagnosed with PTSD; bipolar II disorder, with mood-incongruent psychotic features; opioid abuse, moderate, sustained remission; and reflex sympathetic dystrophy syndrome. Department of Veterans Affairs (VA) Rating Decision, dated 28 January 2016, reflecting the VA rated the applicant 70 percent service-connected disability for bipolar II disorder with mood- incongruent psychotic features (claimed as depression, anxiety, and adjustment disorder). (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Attachment to DD Form 293; in-service medical records; post-traumatic stress disorder (PTSD) Disability Benefits Questionnaire, with addendum; post-service treatment notes; and VA Rating Decision. 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) 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 14-12c prescribes 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. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 honorable. The applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resources Record (AMHRR) includes partial facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's electronic signature. The applicant's DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of general (under honorable conditions). The applicant contends bipolar II disorder and other mental health conditions affected behavior which led to the discharge. The applicant provided several medical documents reflecting the applicant was diagnosed with PTSD; bipolar II disorder, with mood-incongruent psychotic features; opioid abuse, moderate, sustained remission; reflex sympathetic dystrophy syndrome; and several other mental health conditions. The applicant was pending a medical evaluation board for reflex sympathetic dystrophy. The VA rated the applicant 70 percent service- connected disability for bipolar II disorder with mood-incongruent psychotic features (claimed as depression, anxiety, and adjustment disorder). The applicant provided two third-party statement to attest to the applicant's experiences with the medical issues. The applicant's AMHRR is void of a mental status evaluation. The applicant contends maltreatment by members of the unit. The applicant provided evidence reflecting the applicant reported to medical personnel a toxic work environment and extreme stressors from the unit. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the physical disability system and is subsequently processed for an involuntary administrative separation for misconduct, the administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB. If the MEB findings indicate referral of the case to a physical evaluation board (PEB) is warranted, a copy of the approved MEB proceedings will be forwarded to the Soldier's GCMCA and unit commander. The GCMCA may direct the Soldier be processed through the physical disability system, when court-martial proceedings have not been initiated, or to continue with the administrative separation action. 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 DO; Anxiety DO NOS; Brief Psychotic DO with marked stressors; Bipolar DO (70%SC). (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found the diagnoses of Adjustment DO, Anxiety DO NOS, Brief Psychotic DO were made while the applicant was in the service. VA service connection for Bipolar DO establishes it occurred during active service. (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, bipolar disorder. (Note-the diagnoses of Adjustment DO, Anxiety DO NOS and Brief Psychotic DO are subsumed under Bipolar DO). As there is an association between Bipolar DO and impulsive, unplanned travel, there is a nexus between his diagnosis of Bipolar DO and his period of AWOL. Of note, many of the BH symptoms exhibited by the applicant while on active duty can be seen in Bipolar DO. Risk taking behaviors, disorganized behavior, impulsivity, mood dysregulation, poor judgment, irritability, paranoia, and delusional beliefs are but a few. Bipolar patients who are approaching mania will often make rash, impulsive decisions to travel to far-away places. Typically, they spend excessive amounts of money on these trips and usually return to their home only after getting into legal trouble abroad, being brought home by a family member or switching into a depressive episode. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's bipolar disorder outweighed the basis for separation - AWOL- for the aforementioned reason. b. Response to Contention(s): (1) The applicant requests an upgrade to honorable. The Board considered this contention during proceedings and voted to grant an upgrade based on the applicant's: Adjustment DO; Anxiety DO NOS; Brief Psychotic DO with marked stressors; The applicant is also 70% service-connected by the VA for Bipolar DO outweighing the applicant's Serious Offense - AWOL basis for separation. Thus, and upgrade of the characterization of service and narrative reason for separation code is warranted. (2) The applicant contends bipolar II disorder and other mental health conditions affected behavior which led to the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the detailed in paragraphs 9a (3-4) and 9b (1). (3) The applicant contends maltreatment by members of the unit. The Board considered this contention and determined there was insufficient evidence contained in the record or provided by the applicant to corroborate the applicant's assertion. However, the Board determined that an upgrade of the characterization of service was warranted based on other circumstances as outlined above in paragraphs 9a (3-4) and 9b (1). (4) The applicant contends the discharge should have been for medical reasons and medical evaluation board was under process at the time of the separation proceedings. The Board considered this contention and determined that Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Nevertheless, the Board voted that relief was warranted based on other circumstances as outlined above in paragraphs 9a (3- 4) and 9b (1). c. The Board determined the discharge is inequitable based on the applicant's Adjustment DO, Anxiety DO NOS, Brief Psychotic DO and Bipolar Disorder outweighing the basis for separation - AWOL. Thus, the prior characterization is no longer appropriate outweighed the basis for separation - AWOL. Thus, relief is warranted. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Adjustment DO, Anxiety DO NOS, Brief Psychotic DO and Bipolar Disorder. 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 / 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 AR20200008993 1