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: 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, being struck by an improvised explosive device (IED) in Fallujah, Iraq. The applicant suffered from traumatic brain injury and neck injuries. The applicant was honorably discharged on 10 November 2004. The applicant suffered from post- traumatic stress disorder (PTSD) symptoms of nightmares, mood swings, and anger for four years. The applicant reenlisted in 2008 and was discharged 30 June 2015 with an under other than honorable conditions discharge. The applicant requested mental health care during the enlistment but was denied. The applicant is receiving treatment at the CBOC [Canton Community Based Outpatient Clinic] for PTSD. During the applicant's second enlistment the applicant's first sergeant (1SG), 1SG P., would not excuse the applicant for behavioral health therapy. This continued for eight months. The applicant spoke with the retention noncommissioned officer (NCO) at the battalion level about being reassigned to another unit to receive help, but it was not an option. The applicant also spoke with a Special Forces Recruiter and performed physical training with the Special Forces for several months, but the 1SG did not allow it. The applicant tried to apply for Special Forces to receive help, but they were of no help. The applicant kept hitting brick walls when it came to seeking help. The applicant left because the applicant was having suicidal ideations. Since the applicant has been home, the applicant attempted to commit suicide and ended up seeking treatment, which is helping. b. Board Type and Decision: In a records review conducted on 20 September 2023, and by a 4-1 vote, the Board determined the discharge is inequitable based on the applicant's the circumstances surrounding the discharge (Post Traumatic Stress Disorder and Traumatic Brain Injury diagnoses). Therefore, the Board voted to: grant relief in the form of an upgrade of the characterization of service to Honorable, change the separation authority to AR 635-200 paragraph 14-12a, change the narrative reason for separation to Misconduct (Minor Infractions), and change the corresponding separation code to JKN. 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: 30 June 2015 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 28 April 2015, the applicant was charged with Violating Article 85, UCMJ, (Being absent without authority, with intent to remain away from 2 July 2009 and remaining in desertion until apprehended on 25 March 2015). (2) Legal Consultation Date: 7 May 2015 (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: 26 May 2015 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 October 2008 / 3 years b. Age at Enlistment / Education / GT Score: 27 / HS Graduate / 111 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B20, Infantryman / 9 years, 1 month, 15 days d. Prior Service / Characterizations: RA, 22 August 2000 - 10 November 2004 / HD USARCG, 11 November 2004 - 13 August 2008 / NA e. Overseas Service / Combat Service: SWA / Kuwait / Iraq (31 August 2003 - 15 September 2004) f. Awards and Decorations: ARCOM, AAM-2, AGCM-2, NDSM, AFEM, GWOTEM, GWOTSM, NCOPDR, ASR, CIB, EIB g. Performance Ratings: 1 November 2008 - 1 July 2009 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 2 July 2009; From "AWOL" to "Dropped From Rolls (DFR)," effective 2 August 2009; From "DFR" to "Confined by Civil Authorities (CCA)," effective 25 March 2015; From "CCA" to "Returned to Military Control (RMC), effective 25 March 2015; and From "RMC" to "PDY," effective 26 March 2015. Report of Return of Absentee, 24 March 2015, reflects the applicant's absence began on 2 July 2009. The applicant was apprehended by Veterans Affairs Police Department and returned to military control. i. Lost Time / Mode of Return: 5 years, 8 months, 24 days: AWOL, 2 July 2009 - 24 March 2015 / Apprehended by Civilian Authorities CCA, 25 March 2015 - 25 March 2015 / Returned to Military Authority j. Behavioral Health Condition(s): (1) Applicant provided: Aultman Health Foundation Office, Intake letter, 14 March 2014, reflecting the applicant was diagnosed with PTSD, chronic; pain disorder, with general medical and psychological factory; depression, not otherwise specified (NOS); alcohol dependence, in remission; opiate dependence; chronic pain; and global assessment of function (GAF) of 55. Two Aultman Health Foundation Office, Follow-Up Notes, 4 and 26 February 2015, reflecting the applicant returned for a follow-up evaluation for depression, anxiety, PTSD, pain disorder, and opiate dependence. The applicant was prescribed medication. Department of Veterans Affairs Medical Record Problem List, 27 July 2015, reflecting PTSD and TBI are listed as recorded problems. Department of Veterans Affairs letter, 21 August 2015, reflecting a licensed independent social worker is treating the applicant for PTSD. The applicant received the PTSD diagnosis related directly to the applicant's military service while in battle. Stark County Veterans Service Commission letter, 6 January 2016, reflecting the applicant, while AWOL, sought treatment records to support the PTSD diagnosis. (2) AMHRR Listed: Department of Veteran's Affairs (VA) Police Report, 24 March 2015, reflects the applicant was admitted into the psychiatric Emergency Room and a check of the LEADS [Law Enforcement Automated Data System] showed the applicant had a felony warrant for desertion from the Army. The applicant was admitted for drug seeking behavior and withdrawals. The U.S. Deserter Information Point in the applicant's unit was contacted regarding extradition. The applicant was issued a plan ticket through the Military Entrance Processing Station and advised to report to Fort Campbell to complete discharge processing. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; Two DD Forms 214 (multiple copies); VA Statement in Support of Claim; VA Medical Record Problem List; VA Medical Center letter; Stark County Veterans Service Commission letter; Aultman Health Foundation Office, Intake letter, with medical documents; and Aultman Health Foundation Office, Follow-Up Notes. 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 10-6 stipulates medical and mental examinations are not required but may be requested by the Soldier under AR 40-501, chapter 8. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions is normally 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.) (7) 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. 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 PTSD, TBI, and other medical issues affected behavior, which ultimately led to the discharge. The applicant provided several medical documents indicating the VA diagnosed the applicant with PTSD, chronic; pain disorder, with general medical and psychological factory; depression, not otherwise specified (NOS); alcohol dependence, in remission; opiate dependence; chronic pain; and global assessment of function (GAF) of 55, and prescribed medication. The applicant's AMHRR is void of a mental status evaluation. The applicant contends being denied behavioral health therapy by a senior member of the command. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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: PTSD, TBI, Pain Disorder, Depression Not Otherwise Specified, and Anxiety. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for combat-related PTSD, and the VA diagnosed the applicant with a TBI related to an incident that occurred in combat. There is no evidence that applicant's Depression, Anxiety, or Pain Disorder existed at the time the applicant went AWOL. (3) Does the condition or experience excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant's PTSD and TBI mitigate the applicant's AWOL offense given the nexus between PTSD/TBI and avoidance. There is no evidence that applicant's Depression, Anxiety, or Pain Disorder existed at the time the applicant went absent without leave, but this is inconsequential given that applicant's basis of separation is fully mitigated by PTSD/TBI. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor's opine, the Board determined that the applicant's PTSD/TBI outweighed the applicant's medically mitigated AWOL offense. b. Response to Contention(s): (1) The applicant contends PTSD, TBI, and other medical issues affected behavior, which ultimately led to the discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service because the applicant's PTSD/TBI outweighed the applicant's medically mitigated AWOL offense. (2) The applicant contends being denied behavioral health therapy by a senior member of the command. The Board determined that there is insufficient evidence in the official record or applicant-provided evidentiary record that indicates the applicant was not provided sufficient access to behavioral health resources. However, the Board determined a discharge upgrade is warranted because the applicant's PTSD/TBI outweighed the applicant's medically mitigated AWOL offense. c. The Board determined the discharge is inequitable based on the applicant's circumstances surrounding the discharge (PTSD/TBI). Therefore, the Board voted to: grant relief in the form of an upgrade of the characterization of service to Honorable; change the separation authority to AR 635-200, paragraph 14-12a; change the narrative reason for separation to Misconduct (Minor Infractions); and change the corresponding separation program designator (SPD) code to JKN. The Board determined the RE code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD/TBI diagnoses mitigated the misconduct of being AWOL. 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. The Board determined the RE code of 4 was proper and equitable given the nature and totality of the diagnosed behavioral health conditions. 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: RE-4 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 AR20210001669 1