1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: 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, he was originally discharged for misconduct within 6 months of returning from his 12-month tour of duty in Iraq. The applicant was rated 50 percent service-connected disability for post-traumatic stress disorder due to his tour in Iraq, effective 25 May 2011. The applicant's service treatment records and personnel files indicate the severity of his PTSD, concluding his service in Iraq was served in a designated imminent danger area. The applicant believes his PTSD was undiagnosed, resulting in a misconduct discharge. The applicant believes a misconduct discharge is not applicable to his situation and he would appreciate a review and an upgrade of his discharge. In a records review conducted on 24 February 2022, and by a 5 - 0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD diagnosis that fully mitigates the applicant's misconduct of drug use, AWOL, and incapacitation. 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 / General (Under Honorable Conditions) b. Date of Discharge: 28 June 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 31 May 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant wrongfully used marijuana; went AWOL from 2 March 2007 to 28 March 2007; and, was incapacitated for the proper performance of his duties. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 4 June 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 11 June 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 March 2006 / 5 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 121 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 2 years, 11 months, 2 days d. Prior Service / Characterizations: RA, 30 June 2004 - 10 March 2006 / HD e. Overseas Service / Combat Service: SWA / Iraq (10 December 2005 - 18 November 2006) f. Awards and Decorations: ARCOM, NDSM, ICM, ASR, OSR, CIB g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 2 March 2007; and, From "Absent Without Leave" to "Present for Duty," effective date 28 March 2007. FG Article 15, dated 10 April 2007, for, without authority, absent himself from his unit (from 2 March 2007 to 28 March 2007) and as a result of wrongful indulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties (14 February 2007). The punishment consisted of a reduction to E-4; forfeiture of $815 pay per month for two months (one month of the forfeiture suspended); and, extra duty and restriction for 45 days. Copy of DD Form 2624, dated 4 April 2007, reflects the applicant tested positive for THC 93 (marijuana), during an Inspection Other (IO) urinalysis testing, conducted on 28 March 2007. Intoxilyzer Test, dated 11 May 2007, reflects the applicant blood alcohol content resulted in .115 percent. Record of Supplementary Action Under Article 15, UCMJ, dated 15 May 2007, reflects the suspended portion of the punishment imposed on 11 April 2007, was vacated for Article 112a, UCMJ, for wrongfully using marijuana (between 26 February and 28 March 2007). FG Article 15, dated 8 June 2007, for, as a result of wrongful previous overindulgence in intoxicating liquor or drug, was incapacitated for the proper performance of his duties (11 May 2007). The punishment consisted of a reduction to E-1; forfeiture of $650 pay per month for two months; and, extra duty and restriction for 45 days. Seven Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 27 days: (AWOL, 2 March 2007 - 28 March 2007) / Surrendered j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 4 May 2007, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with: Substance abuse. Memorandum, subject: Chapter recommendation for [Applicant], dated 4 May 2007, reflects the applicant was evaluated for chapter 14-12 and the psychologist indicated she would support a chapter 5-17 due to the applicant's service in Iraq as an NCO and his good standing in the unit. The applicant provided VA Rating Decision, dated 19 August 2011, which reflects the applicant was rated 50 percent disability for PTSD (also claimed as depression). The applicant provided VA Medical Center Progress Notes, dated 16 September 2011, reflecting he was diagnosed with PTSD, chronic. The applicant provided VA, North Texas Health Care System letter, dated 2 November 2011, reflects the applicant was a patient and was treated for PTSD and was rated 50 percent service connected disability for his condition. The applicant was in rehabilitation and was doing well in rehabilitation. The physician states the applicant was reportedly doing good in service, but the last six months of service, he went downhill, reportedly he was suffering from PTSD and used alcohol to overcome his symptoms. It appears his discharge was attributed to his PTSD symptoms and the physician wonders if there was a possibility to change his discharge status. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; M.S. Psychologist memorandum; VA letter; VA Rating Decision; Progress Notes; Enlisted Record Brief; Two Certificates of Completion; DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided certificates reflecting he completed the rehabilitation and substance abuse programs. 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. (7) 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. 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 a 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." 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 as listed in tables 2-2 or 2-3 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 contends he suffered from undiagnosed PTSD which affected his behavior and led to his discharge. The applicant provided medical documents reflecting he was later diagnosed by the VA with PTSD (also claimed as depression) and rated 50 percent disability. The applicant's AMHRR contains documentation that supports a diagnosis of in-service substance abuse. The record shows the applicant underwent a mental status evaluation (MSE) on 4 May 2007, which indicates he applicant was cleared for any administrative actions deemed appropriate by the command. The applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. The applicant was diagnosed with: Substance abuse. The MSE was considered by the separation authority. The applicant contends he could have been discharged under AR 635-200, Chapter 5-17 (Other designated physical or mental conditions), which was supported by the in-service psychologist. The applicant was processed for elimination and approved for separation under AR 635-200, paragraph 14-12c for Commission of a Serious Offense. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service to include a combat tour. The applicant contends he successfully completed the rehabilitation and substance abuse programs. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. 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 and found the applicant was diagnosed and service connected by the VA for combat-related PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was service connected by the VA for combat-related PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor, after applying liberal consideration, opined that applicant's combat-related PTSD mitigates applicant's basis of separation misconduct of wrongfully using marijuana, AWOL, and incapacitation given the association between applicant's PTSD, substance use for self-medication, and avoidance. (4) Does the condition or experience outweigh the discharge? Yes. The Board, after applying liberal consideration, concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's combat-related PTSD outweighed applicant's wrongfully using marijuana, AWOL, and incapacitation which are applicant's basis of separation, for the reasons listed in (3) above. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board determined that this contention was valid and 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 because applicant's PTSD outweighed the mitigated basis for discharge. (2) The applicant contends suffering from undiagnosed PTSD which affected behaviors that led to the discharge and was rated 50 percent disability by the VA. The Board's Medical Advisor after applying liberal consideration, found applicant was diagnosed and service connected by the VA with combat-related PTSD, and the Board determined that the applicant's PTSD outweighed the medically mitigated basis for discharge. (3) The applicant contends good service to include a combat tour. The Board considered this contention during its deliberation but determined after applying liberal consideration, that applicant's combat-related PTSD outweighed the discharge and voted to upgrade the applicant's characterization of service to Honorable, and change the narrative reason and corresponding separation code. (4) The applicant contends successfully completed the rehabilitation and substance abuse programs. The Board considered this contention during its deliberation but determined after applying liberal consideration, that applicant's combat-related PTSD outweighed the discharge and voted to upgrade the applicant's characterization of service to Honorable, and change the narrative reason and corresponding separation code. c. The Board determined the discharge is inequitable based on the applicant's PTSD diagnosis that outweighs the applicant's medically mitigated misconduct of drug use, AWOL, and incapacitation. 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's BH condition, combat-related PTSD outweighed the applicant's misconduct of wrongfully using marijuana, AWOL, and incapacitation which are the basis of separation. (2) The Board voted to change the applicant's narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of 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 AR20210000147 3