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, the discharge should be overturned because of improper medical attention and honorable service to the country, to include a deployment to help fight for the country. The applicant claims that the applicant received a payout from the Defense Finance and Accounting Services, which is an indication of not being a bad Soldier. The applicant was diagnosed with PTSD, anxiety disorder, sleep apnea, TBI, kidney stones, worms in the stomach, irritable bowel syndrome, staph (skin infection), severe headaches which impair vision, and more. The applicant claims that the applicant was assigned to a new duty station and requested permission to seek medical and mental health attention, but was denied by the command. The applicant claims to have become extremely ill resulting in the applicant leaving the unit to seek natural medical treatment from the family doctor in Mexico due to the applicant's cultural beliefs. The applicant also claims to have turned to alcohol to self-medicate. The applicant claimed that the applicant feltbetter after one year and returned to face the consequences, serving 12 months in confinement. During the applicant's court-martial proceedings, the applicant claims that the medical evaluator recommended a medical discharge based on medical and mental health conditions being the cause of the applicant's actions. The applicant states that the applicant received a rating of 100 percent and social security benefits. In a records review conducted on 31 March 2022, and by a 4-1 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 10 September 2009 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 1, dated 6 January 2009, on 19 August 2008, the applicant was found guilty of The Charge, in violation of Article 86: The Specification: The applicant, without authority, was absent from the unit from 3 October 2006 to 23 January 2008. Plea: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for nine months; and, to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 6 January 2009 / only so much of the sentence, as provides for reduction to E-1; confinement for eight months; and, a bad conduct discharge was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 14 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. Special Court-Martial Order Number 121, dated 23 July 2009, reflects the approved sentence was finally affirmed and the bad conduct discharge was ordered executed. (5) Date Sentence of BCD Ordered Executed: 23 July 2009 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 January 2003 / 6 years / The AMHRR reflects the applicant was AWOL/confined for 1 year, 9 months, 16 days (time lost) and served 210 days on excess leave awaiting the court-martial review process. b. Age at Enlistment / Education / GT Score: 19 years / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19K10, M1 Armor Crewman / 4 years, 10 months, 17 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (18 January 2005 - 7 January 2006) f. Awards and Decorations: AGCM, NDSM, GWOTEM, GWOTSM, ASR, OSR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 3 October 2006; From "Absent Without Leave" to "Dropped From Rolls (DFR)," effective date 2 November 2006; From "Present for Duty," to "Confined by Military Authorities (CMA)," effective date 19 August 2008; and, From "Confined by Military Authorities" to "Present for Duty," effective date 13 February 2009. Report of Return of Absentee, dated 25 November 2007, reflects the applicant went AWOL on 3 October 2006 and was apprehended by civil authorities and returned to military control on 27 November 2007 (return date discrepancy with Special Court-Martial Order Number 1, which reflects 23 January 2008). Special Court-Martial Order Number 1, dated 6 January 2009, as described in previous paragraph 3c(1). Special Court-Martial Order Number 121, dated 23 July 2009, as described in previous paragraph 3c(4). Memorandum for Record, subject: Missing Documents, dated 1 September 2009, reflects the documents regarding the applicant's status of PDY to AWOL, effective 3 October 2006 (the AMHRR contains the DA Form 4187) and AWOL to PDY, effective 23 January 2008, are missing. i. Lost Time / Mode of Return: 1 year, 9 months, 16 days: AWOL, 3 October 2006 - 23 January 2008 / Apprehended by Civilian Authorities CMA, 19 August 2008 - 12 February 2009 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Report of Medical History, dated 19 February 2008, the examining medical physician noted in the comments section: SM currently seen by Behavioral Health for Insomnia/Depression. The applicant provided Chronological Record of Medical Care, dated 11 March 2008, reflecting the applicant underwent a mental status evaluation, which shows the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; and able to distinguish right from wrong and to adhere to the right. The applicant was diagnosed with: Adjustment Disorder (Unspecified). The applicant provided medical records (in-service), reflecting the applicant was diagnosed while confined at the NAVCON Brig with: Post-traumatic Stress Disorder, chronic, combat- related; Sleep Disorder related to PTSD; and, ruled out Traumatic Brain Injury. The applicant provided Report of Medical History, dated 2 February 2009, the examining medical physician noted in the comments section: PTSD, recommend continue counseling through the VA. The applicant provided VA Medical Center documents, dated 13 December 2011, reflecting diagnoses: PTSD; Adjustment Disorder, unspecified; Kidney Stones; and, mild TBI. The applicant provided VA Rating Decision, dated 14 April 2014, reflecting the applicant was rated 70 percent disability for post-traumatic stress disorder with anxiety, depression, alcohol abuse; 30 percent disability for migraine headaches with visual disturbance (also claimed as eye problem due to photosensitivity; 0 percent for methicillin resistant staphylococcus aureus; and, 30 percent disability for irritable bowel syndrome with gastroesophageal reflux disease (also claimed as H. pylori). The applicant was rated 100 percent overall combined disability. The applicant provided Social Security Administration Retirement, Survivors Disability Insurance Notice of Award, undated, reflecting the applicant was entitled to monthly disability benefits beginning September 2014. Memorandum, subject: Advisory Opinion [Applicant], dated 27 October 2016, reflects the Army Review Boards Agency Psychiatrist opined based on the available documentation, it is very clear that the applicant has severe, combat related PTSD from the experiences in Iraq. The applicant had a mitigating Behavioral Health condition (PTSD) for the misconduct leading to the Army. PTSD is often associated with avoidant behaviors such as going AWOL. There is very likely a nexus between the applicant's PTSD and the offense which led to the discharge from the Army. The advisory opinion was forwarded to the applicant for comment or rebuttal, but the applicant did not respond. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; two DD Forms 293; separation orders; in- service medical records; various military service documents; VA Rating Decision; VAMC medical documents; Social Security Administration Retirement, Survivors and Disability Insurance Notice of Award. 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). 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-4 applies to a person separated from last period of service with a nonwaiverable 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 record of service, the issues and documents submitted with the application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends PTSD, TBI, and other health issues affected the applicant's behavior that led to the discharge. The applicant provided documentation which supports in-service diagnoses: Post-Traumatic Stress Disorder, chronic, combat-related; Sleep Disorder related to PTSD; Ruled out Traumatic Brain Injury (diagnosed while in confinement). The applicant provided a mental status evaluation conducted on 11 March 2008, indicating the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; and able to distinguish right from wrong and to adhere to the right. The applicant was diagnosed with: Adjustment Disorder (Unspecified). The applicant provided VA medical documents reflecting, among other medical conditions, diagnoses: PTSD, with anxiety, depression, and alcohol abuse; Migraine Headaches; Irritable Bowel Syndrome with gastroesophageal reflux disease; Adjustment Disorder, unspecified; Kidney Stones; methicillin resistant staphylococcus aureus; and, mild TBI. The applicant contends a VA rating of 100 percent for service-connected disabilities and a medical discharge was more appropriate. The applicant provided medical documents, which reflect diagnoses of mental and medical health issues and an overall rating of 100 percent disability; 70 percent for PTSD. The medical condition mild TBI was not included in the list of rated disabilities in the document provided. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Army when determining a member's discharge. 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 the command denied medical treatment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of 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, applicant's statement, and/or civilian provider documentation and found that the applicant's PTSD, TBI, and Adjustment Disorder may mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's PTSD, TBI, and Adjustment Disorder existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, the Board's Medical Advisor opined that the applicant's PTSD partially mitigated applicant's AWOL because AWOL is part of the applicant's sequela of symptoms (avoidance) associated with applicant's PTSD. (4) Does the condition or experience outweigh the discharge? No. Despite the Board's application of liberal consideration and the Board's consideration of the opinion of the Board's Medical Advisor, a voting member, the Board determined that the available evidence did not support a conclusion that any of the applicant's medical conditions, including PTSD, outweighed the partially mitigated AWOL that was the basis for applicant's separation b. Response to Contention(s): (1) The applicant contends PTSD, TBI, and other health issues affected behavior and led to the discharge. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. The Board liberally considered this contention but determined that an upgrade was not warranted because the applicant's PTSD diagnosis and OBHI conditions did not outweigh the applicant's partially mitigated AWOL that was the basis for separation. (2) The applicant contends a VA rating of 100 percent for service-connected disabilities and a medical discharge was more appropriate. A medical discharge does not fall under the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. (3) The applicant contends the command denied medical treatment. The Board considered this contention and determined that the evidence does not support a conclusion that the Command acted in an arbitrary or capricious manner. (4) The applicant contends an upgrade would allow medical and/or educational benefits through the GI Bill. The applicant's General discharge should enable treatment for service- connected conditions, as determined by the VA. A General discharge also makes the applicant eligible for all VA benefits except for the GI Bill. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the ARDB. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. (5) The applicant contends good service, including a combat tour. The Board considered this contention but determined the applicant's General discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel required for an Honorable discharge. It brought discredit on the Army, and was prejudicial to good order and discipline. By going AWOL for over a year, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The majority of 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, the applicant's PTSD did not outweigh the partially mitigated AWOL offense for 15 months, therefore, the applicant's service was not sufficiently meritorious to warrant an Honorable discharge, and the discharge was proper and equitable. 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. (4) 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 AR20210000154 1