1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, his wife was suffering from gall stones, which impaired his judgement. The applicant was diagnosed with PTSD and is currently receiving treatment for this disorder. The applicant received the Army Good Conduct Medal for three years of good service. The applicant never had any issues with bad conduct and would like his discharge upgraded to honorable. a. In a records review conducted on 10 March 2022, and by a 5 - 0 vote the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (including the partial medical mitigation of basis for separation because of Unspecified Anxiety Disorder and PTSD diagnoses). 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 March 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: 4 March 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant, while on R&R Leave, from 4 to 18 October 2010, without authority, absent himself from his unit, by missing movement back to Kandahar Air Field; failed to report to: close out formation at 1630 hours, 16 November 2010; T.C.P. duty on 17 November 2010; PT/accountability formation at 0630 hours on 18 November 2010; work call at 1330 hours on 19 November 2010; and, PT/accountability formation at 0630 hours on 15 February 2010. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 5 March 2011 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: Undated / General (Under Honorable Conditions) 4. SERVICE DETAILS: b. Date / Period of Enlistment: 1 August 2007 / 4 years c. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 106 d. Highest Grade Achieved / MOS / Total Service: E-4 / 12R10, Interior Electrician / 3 years, 7 months, 4 days e. Prior Service / Characterizations: None f. Overseas Service / Combat Service: SWA / Afghanistan (19 February 2008 - 10 May 2008; 28 March 2010 - 17 October 2010) g. Awards and Decorations: ACM-CS, AAM, AGCM, NDSM, GWOTSM, ASR, CAB h. Performance Ratings: NA i. Disciplinary Action(s) / Evidentiary Record: Development Counseling Form, dated 14 October 2009, reflects the applicant was counseled for violating orders or regulations by having his girlfriend in his barracks room and she was not signed in at the CQ desk in the visitor's log (14 October 2009). CG Article 15, dated 10 November 2009, for violating a lawful general order by wrongfully having his girlfriend in the barracks without her being signed in at the CQ desk (14 October 2009). The punishment consisted of a reduction to E-3 (suspended); forfeiture of $409 pay (suspended); and, extra duty and restriction for 14 days. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 4 October 2010; and, From "Absent Without Leave" to "Present for Duty," effective 18 October 2010. Five Developmental Counseling Forms, reflect the applicant was counseled for failing to report to his appointed place of duty at the time prescribed (between 16 and 19 November 2010). The applicant responded, the reasons for his actions was lack of sleep and his wife had been ill. FG Article 15, dated 13 December 2010, for, without authority, absent himself from his unit located at Kandahar Air Field, Afghanistan (from 4 to 18 October 2010) and fail to obey an order from Sergeant First Class (SFC) E.W. by wrongfully not signing in at 1300 hours (5 July 2010). The punishment consisted of a reduction to E-1; forfeiture of $723 pay; and, extra duty and restriction for 45 days. Developmental Counseling Form, dated 7 February 2011, reflects the applicant was counseled the rear detachment commander regarding preseparation requirements to include revocation of off-post pass privileges, a sleep plan, and signing in at the battalion staff duty desk. Developmental Counseling Form, dated 15 February 2011, reflects the applicant was counseled by Staff Sergeant (SSG) M.D. for failing to report to 0630 hours PT Formation. SSG M.D.'s plan of action included reporting to the staff duty desk at the time prescribed by the commander and working on his attitude to help his spouse to a speedy recovery. The counselor also discussed religion. The applicant disagreed with the counseling, but refused to sign the form. j. Lost Time / Mode of Return: 15 days: (AWOL, 4 October 2010 - 17 October 2010) k. Diagnosed PTSD / TBI / Behavioral Health: Sworn Statement, dated 18 October 2010, reflects the applicant indicated he went AWOL because he had mental issues. Memorandum, subject: Election of Rights Regarding Separation Under AR 635-200, Chapter 14-12b, A Pattern of Misconduct [Applicant], dated 5 March 2011, the applicant, in an attached personal statement to the separation authority, described his diagnosis of PTSD; and how he tried to tell the "Army," he was having difficulties and the "Army," turned its back on him; and his actions were out of character. Mental Status Evaluation, dated 16 November 2010, reflects the applicant had the mental capacity to participate and the proceedings, was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in the evaluation, but further assessment was needed. Report of Mental Status Evaluation, dated 14 February 2011, reflects the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met retention standards. Although he had ongoing mental health concerns, and should continue receiving care through Behavioral Health, he was considered medically (psychiatrically) fit for duty. The mental status evaluation did not indicate a diagnosis. Report of Medical History, dated 2 March 2011, the applicant reported PTSD and anxiety. The examining medical physician did not make any comments in the comment section. Report of Medical Examination, dated 2 March 2011, the examining medical physician noted in the significant or disqualifying defects, medical condition/diagnosis section: PTSD; Personality Disorder. The examiner recommended psychiatric care as an outpatient. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. (7) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 applies to 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 family issues impaired his judgement. The applicant's AMHRR contains various counseling forms, which the applicant indicated the reasons for his failure to report to duty was because of lack of sleep and his wife's illness. The record shows the applicant reported this information after he committed various acts of misconduct. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends he was diagnosed with PTSD, which affected his behavior and led to his discharge. The applicant's AMHRR reflects the applicant underwent two mental status evaluations (MSEs) on 16 November 2010 and 14 February 2011. The MSE dated 16 November 2010, reflects the applicant had the mental capacity to participate in the proceedings, but further assessment was needed. The MSE, dated 14 February 2011, reflects the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met retention standards. Although he had ongoing mental health concerns, and should continue receiving care through Behavioral Health, he was considered medically (psychiatrically) fit for duty. The MSE does not indicate a diagnosis. The MSE was considered by the separation authority. The applicant underwent a medical evaluation on 2 March 2011, which reflects the examining physician noted under significant disqualifying defects, medical condition/diagnosis section: PTSD; Personality Disorder. The applicant contends good service to include one 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 and found applicant was diagnosed in service with Unspecified Anxiety Disorder and 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 applicant was diagnosed with Unspecified Anxiety Disorder and PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. After applying Liberal Consideration, the Board's Medical Advisor opines that applicant's Unspecified Anxiety Disorder and PTSD mitigated disrespect, failure to obey lawful orders, AWOL and Failure to Report (FTR) which are the basis of applicant's separation given that both PTSD and anxiety are associated with avoidance, but did not mitigate operating a vehicle without insurance. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that Unspecified Anxiety Disorder and PTSD mitigates disrespect, failure to obey lawful orders, AWOL and FTRs for the reasons listed in (3) above, but even after applying liberal consideration found that the applicant's BH conditions did not outweigh the partially mitigated basis for separation and unmitigated operating a vehicle without insurance. b. Response to Contentions: (1) The applicant contends family issues affected his behavior. The Board considered this contention during the proceedings but concluded applicant's Unspecified Anxiety Disorder and PTSD did not outweigh applicant's partially mitigated and unmitigated basis of separation but voted to upgrade the characterization when also considering applicant's military combat service. (2) The applicant contends he suffered from PTSD, which affected his behavior and led to his discharge. The Board liberally considered this contention during the proceedings as the applicant was diagnosed in service with PTSD and is service connected for combat-related PTSD. (3) The applicant contends good service to include one combat tour. The Board considered this contention and voted to upgrade the characterization of service due to applicant's Unspecified Anxiety Disorder and PTSD partially mitigating the applicant's basis for separation as compared to applicant's military combat service. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (including the partial medical mitigation of basis for separation because of Unspecified Anxiety Disorder and PTSD diagnoses). d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's military combat service as compared to the applicant's Unspecified Anxiety Disorder and PTSD that partially mitigated the applicant's misconduct that was the basis for separation made the current discharge characterization inequitable. (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 FTR - Failure to Report 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 AR20210000161 1