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: 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, serving in the military for six years with distinction, with two deployments in Iraq. b. Board Type and Decision: In a records review conducted on 25 August 2023, and by a 5-0 vote, the Board determined the discharge is inequitable because the applicant's TBI, PTSD, and Depression outweighed the basis for separation - AWOL and breaking restriction. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. The Board determined the RE code was proper and equitable and voted not to change it. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 11 April 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 22 March 2012, the applicant was charged with: Charge I: Violating Article 86, UCMJ: Specification 1: The applicant was absent without leave (AWOL) from 1 July 2010 and remained absent until 15 September 2010. Specification 2: The applicant was AWOL from 10 November 2010 and remained absent until terminated by apprehension on 28 February 2012. Charge II: Violating Article 134, UCMJ, The Specification: The applicant did on 1 July 2010, break restriction. (2) Legal Consultation Date: 16 March 2012 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 29 March 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 July 2007 / 6 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 105 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B3P, Infantryman / 6 years, 2 months, 16 days d. Prior Service / Characterizations: RA, 6 July 2004 - 3 July 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (8 August 2006 - 29 October 2007; 5 December 2008 - 15 November 2009) f. Awards and Decorations: ARCOM-4, AAM-4, AGCM, NDSM, GWOTSM, HSM, ICM- CS, NCOPDR-2, ASR, OSR-2, CIB, EIB g. Performance Ratings: 1 July 2007 - 30 June 2008 / Among the Best 1 July 2008 - 30 June 2009 / Among the Best h. Disciplinary Action(s) / Evidentiary Record: The Charge Sheet as described in previous paragraph 3c. FG Article 15, 30 June 2010, for: Failing to go at the time prescribed to the appointed place of duty (10 May 2010); Going from appointed place of duty, without authority (10 May 2010); and Violating a lawful general regulation by knowingly inhaling compressed air with the intent to induce intoxication, excitement, and or stupefaction (10 May 2010). The punishment consisted of a reduction to E-5 (suspended); forfeiture of $1,207 pay per month for two months (suspended); extra duty for 45 days; and restriction for 12 days. Eight Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 1 July 2010; From "AWOL" to "Dropped From Rolls (DFR)," effective 1 August 2010; From "DFR" to "PDY," effective 15 September 2010; From "PDY" to "AWOL," effective 10 November 2010; From "AWOL" to "DFR," effective 11 December 2010; From "DFR" to "PDY," effective 28 February 2012; From "PDY" to "Confined by Military Authorities (CMA)," effective 16 March 2012; and From "CMA" to PDY," effective 5 April 2012. Report of Return of Absentee, 15 September 2010, reflects the applicant was apprehended by civilian authorities and returned to military control from an absence which began on 1 July 2010. Deserter / Absentee wanted by the Armed Forces, 1 February 2011, reflects the applicant went AWOL on 10 November 2010. Report of Return of Absentee, 28 February 2012, reflects the applicant was apprehended by civilian authorities and returned to military control from an absence which began on 10 January [sic] 2010 (date should reflect 11 November 2010). The applicant was dropped from rolls on 11 December 2010. The applicant's AMHRR contains statements, presented at the time of separation, from the defense counsel and family members describing the applicant's change in behavior after the deployments and medical issues. i. Lost Time / Mode of Return: 1 year, 7 months (570 days): AWOL, 2 July 2010 - 14 September 2010 / Apprehended by Civilian Authorities AWOL, 10 November 2010 - 27 February 2012 / Apprehended by Civilian Authorities CMA, 16 March 2012 - 4 April 2012 / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; congressional inquiry documents; and Army Review Boards Agency, Congressional Liaison and Inquiries letter. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) 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 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (5) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (6) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. (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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. 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: 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 evidence in the applicant's Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court- martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The general (under honorable conditions) discharge received by the applicant was appropriate under the regulatory guidance. The applicant contends six years of good service, including two combat tours. 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 Disorder, Anxiety Disorder NOS, Depression, TBI, and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found in service diagnoses of TBI, combat-related PTSD, Depression, Anxiety, and an Adjustment Disorder. The applicant's Anxiety Disorder and Adjustment Disorder are subsumed under other BH conditions and do not impact any potential mitigation. (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 the AWOLs and breaking restriction that led to the applicant's separation are mitigated given the nexus between TBI, PTSD, Depression and avoidance. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, to include the Board Medical Advisor opine, the Board determined that the applicant's TBI, PTSD, and Depression outweighed the basis for separation - AWOL and breaking restriction - for the aforementioned reasons. b. Response to Contention(s): The applicant contends six years of good service, including two combat tours. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's TBI, PTSD, and Depression outweighing the basis for separation. c. The Board determined the discharge is inequitable because the applicant's TBI, PTSD, and Depression outweighed the basis for separation - AWOL and breaking restriction. Therefore, the Board voted to grant relief in the form of an upgrade. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's TBI, PTSD, and Depression outweighed the basis for separation - AWOL and breaking restriction. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will not change, as the applicant's TBI and BH conditions are service limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20210001660 1