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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, an upgrade would help with the applicant's condition, which developed while in the military. The applicant desires to receive Department of Veterans Affairs (VA) benefits. The applicant believes the discharge was improper because the applicant was not provided with enough legal advice and was pressured to plead guilty. The applicant was informed by an Air Force doctor in Iraq the applicant had post-traumatic stress disorder (PTSD). The applicant went absent without leave because the applicant had an episode and believed people were after the applicant. The applicant believes because of PTSD, the applicant should have been medically discharged instead of receiving a bad conduct discharge. b. Board Type and Decision: In a records review conducted on 3 August 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD mitigating the applicant's AWOL basis for separation and the applicant's length of service, to include combat service, providing some relief for the remaining misconduct of theft. While the applicant's service provided some relief for the remaining medically unmitigated misconduct, it fell below the level of meritorious service required for an upgrade to Honorable. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General Under Honorable Conditions 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, and the reentry code to RE-3. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 17 December 2010 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 11, dated 10 March 2010, on 8 May 2009, the applicant was found guilty of the following: The Charge, in violation of Article 121, UCMJ, The Specification: Did, in Iraq, on or about 20 December 2007, steal an Olympus Stylus 720 SW digital camera, military property of a value of about $964, the property of G Company, 703rd Brigade Support Battalion (BSB), 4th Brigade Combat Team (BCT), 3rd Infantry Division, Fort Stewart. Plea: Guilty. The Additional Charge, in violation of Article 85, UCMJ, The Specification: Did on or about 13 March 2008, without authority and with intent to remain away therefrom permanently, was absent from the unit and did remain absent so absent in desertion until on or about 4 December 2008. Plea: Not Guilty of Desertion in violation of Article 85, but Guilty of Absence Without Leave in violation of Article 86. Finding: Not Guilty of Desertion in violation of Article 85, but Guilty of Absence Without Leave in violation of Article 86. (2) Adjudged Sentence: Reduction to E-1; to be confined for 9 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: The action taken on 19 November 2009 was withdrawn and substituted by the action taken on 10 March 2010. / Only so much of the sentence, as provides for reduction E-1, confinement for 6 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 146 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. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 9 September 2010 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2006 / 3 years, 26 weeks / The AMHRR is void of any enlistment contract retaining the applicant on active duty after the initial enlistment period. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-3 / 63H20, Tracked Vehicle Mechanic / 4 years, 3 months, 1 day / The applicant's DD Form 214 reflects the applicant was on excess leave for 528 days from 8 July 2009 to 17 December 2010. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 11, as described in the previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Confined by Military Authorities (CMA)" effective date 8 May 2009; and From "CMA" to "PDY," effective date 9 June 2009. i. Lost Time / Mode of Return: 32 days: (CMA, 8 May 2009 - 8 June 2009) / Released from Confinement. j. Behavioral Health Condition(s): (1) Applicant provided: Personal Health Information, dated 13 October 2015, reflecting, between 13 October 1995 and 13 October 2015, the applicant was diagnosed with adjustment disorder, with anxiety and depressed mood; adjustment disorder with mixed emotional features; insomnia; marital problem; phase of life or life circumstance problem; and was a suicide risk. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; Two DD Forms 293; Personal Health Information; Two Special Court-Martial Orders Numbers 11 and 131; and three VA Statements of Support of Claim, third party. 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. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in 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 "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 non-waiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 Applies to: Person separated from last period of service with a non-waiverable 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 AMHRR 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 affected behavior, which ultimately led to the discharge. The applicant provided medical records reflecting the applicant was diagnosed with in-service adjustment disorder, with anxiety and depressed mood; adjustment disorder with mixed emotional features; and insomnia. The applicant provided third party statements attesting to the applicant's behavior and/or circumstances surrounding the applicant's mental health issues. The applicant's AMHRR is void of a mental status evaluation. The applicant contends not being provided with enough legal advice and being pressured into pleading guilty during the court-martial proceedings. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the discharge should have been for medical reasons. 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 an upgrade of the discharge would allow veteran's benefits. Eligibility for veteran's benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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. Additionally, the applicant asserts PTSD, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and the applicant self-asserts PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that there is evidence of potentially mitigating BH conditions. The applicant was diagnosed in service with an Adjustment Disorder and the applicant self-asserts PTSD. The self-asserted PTSD provides no mitigation for the misconduct that led to the applicant's separation as there is no medical evidence to support applicant's claim of PTSD. However, the in-service diagnosis of Adjustment Disorder provides partial mitigation given the severity of applicant's Adjustment Disorder, that more closely represented the diagnosis of Major Depressive Disorder, as evidenced by a suicide attempt and subsequent psychiatric hospitalization December 2007. Given the nexus between a severe Adjustment Disorder and avoidance, it is likely the applicant's Adjustment Disorder contributed to, and therefore mitigates, the AWOL. However, there is no natural sequela between an Adjustment Disorder and theft since neither condition interferes with the ability to distinguish between right and wrong and act in accordance with the right. (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 adjustment disorder outweighed the misconduct of AWOL; however, the misconduct of theft remains medically unmitigated. Based on all the evidence considered by the board, the remaining unmitigated misconduct did not rise to a level that negated the service required for an upgrade, but fell below the level of meritorious service required for an upgrade to Honorable. b. Response to Contention(s): (1) The applicant contends PTSD affected behavior, which ultimately led to the discharge. The Board considered this contention and the applicant's assertion of PTSD; however, the Board could not determine whether the applicant's asserted PTSD actually outweighed the applicant's AWOL and theft without the Board Medical Advisor determination on medical mitigation. Without additional medical evidence, the Board was unable to determine if the applicant's asserted PTSD outweighed the applicant's discharge. (2) The applicant contends not being provided with enough legal advice and being pressured into pleading guilty during the court-martial proceedings. 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 adjustment disorder outweighing the applicant's AWOL basis of separation and the theft basis for separation not rising to a level that negated the service required for an upgrade. (3) The applicant contends the discharge should have been for medical reasons. The Board determined that the applicant's requested change to the DD Form 214 does not fall within 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. (4) The applicant contends an upgrade of the discharge would allow veteran's benefits. The Board considered this contention and 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 Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board determined the discharge is inequitable based on the applicant's PTSD mitigating the applicant's AWOL basis for separation and applicant's length of service, to include combat service, providing some relief for the remaining misconduct of theft. While the applicant's service provided some relief for the remaining medically unmitigated misconduct, it fell below the level of meritorious service required for an upgrade to Honorable. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to General Under Honorable Conditions 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, and the reentry code to RE-3. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General Under Honorable Conditions because the applicant's adjustment disorder mitigated the applicant's misconduct of AWOL and the applicant's length of service, to include combat service, provided some relief for the misconduct of theft. 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, 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: General, Under Honorable Conditions 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 AR20210001725 1