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, upon returning from deployment, facing multiple challenges with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). The applicant contends not receiving any assistance from the chain of command. The applicant states drinking and going AWOL were ways to cope with the demons. The applicant contends serving the country honorably for 13 months, made many mistakes, and has accepted the responsibility for those mistakes. b. Board Type and Decision: In a records review conducted on 5 September 2023, and by a 5-0 vote, the Board, based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Post Traumatic Stress Disorder and Traumatic Brain Injury) determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the 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: 16 November 2011 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 18 July 2011 the applicant was charged with: Charge I: Violating Article 86, UCMJ, for being AWOL Specification 1: 9 November 2010, without authority, absent oneself from the unit, and did remain so absent until on or about 13 December 2010. Specification 2: on or about 17 December 2010, without authority, absent oneself from unit, and did remain so absent until on or about 21 December 2010. Specification 3: on or about 11 February 2011, without authority, absent oneself from unit, and did remain so absent until on or about 12 February 2011. Specification 4: on or about 15 February 2011, without authority, absent oneself from unit to, and did remain so absent until on or about 9 March 2011. Specification 5: on or about 22 June 2011, without authority, absent oneself from unit, and did remain so absent until on or about 23 June 201 l. Charge II: Violating Article 112, UCMJ, for between on or about 8 September 2010 and on or about 15 September 2010, wrongfully use cocaine. DD Form 458, Charge Sheet: On 28 September 2011, the applicant was charged with: on or about 29 July 2010, without authority absent oneself from unit and did remain so until 26 September 2010. (2) Legal Consultation Date: 5 October 2011 (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: 31 October 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 December 2008 / 6 years, 14 weeks b. Age at Enlistment / Education / GT Score: 26 / High School Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 4 years, 6 months, 29 days d. Prior Service / Characterizations: USMC, 23 May 2001 - 8 July 2002 / GD (break in service) e. Overseas Service / Combat Service: SWA / Afghanistan (29 May 2009 - 8 June 2010) f. Awards and Decorations: ACM-2CS, NDSM, GWOTSM, ASR, OSR, ARCOM; NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Electronic Copy of DD Form 2624, 29 October 2010, reflects the applicant tested positive for cocaine, during an Inspection Unit (IU) urinalysis testing, conducted on 15 September 2010. Thirteen Personnel Action forms, reflect the applicant's duty status changed as follows: From "PDY" to "AWOL," effective 9 November 2010; From "AWOL" to "PDY," effective 13 December 2010; From "PDY" to "AWOL," effective 17 December 2010; From "AWOL" to "PDY," effective 21 December 2010; From "PDY" to "AWOL," effective 11 February 2011; From "AWOL" to "PDY," effective 12 February 2011; From "PDY" to "AWOL," effective 15 February 2011; From "AWOL" to "PDY," effective 9 March 2011; From "PDY" to "AWOL," effective 22 June 2011; From "AWOL" to "PDY," effective 23 June 2011 From "PDY" to "AWOL," effective 2 August 2011; From "AWOL" to "DFR," effective 8 August 2011 and From "DFR" to "PDY," effective 26 September 2011. Three Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 117 days: AWOL, 9 November 2010 - 13 December 2010 / NIF AWOL, 17 December 2010 - 21 December 2010 / NIF AWOL, 11 February 2011 - 12 February 2011 / NIF AWOL, 15 February 2011 - 9 March 2011 / NIF AWOL, 22 June 2011 - 23 June 2011 / NIF AWOL, 2 August 2011 - 26 September 2011 / Return to Military Control j. Behavioral Health Condition(s): (1) Applicant provided: Chronological Record of Medical Care 13 April 2011, reflects a diagnosis of Alcohol Abuse, insomnia, Adjustment disorder with anxiety and depress mood. VA Decision letter, 4 August 2017, reflects an evaluation of 100 percent for PTSD and TBI. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Online application. DD Form 214; self-authored letter; two letters of support; VA Decision Letter 4 August 2017; VA Decision Letter 8 November 2019; medical records. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is employed and moving through the ranks. 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. 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 applicant's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. 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 normal and appropriate under the regulatory guidance. The applicant contends being diagnosed with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). The applicant provided a Chronological Record of Medical Care 13 April 2011, reflecting a diagnosis of Alcohol Abuse, insomnia, Adjustment disorder with anxiety and depress mood. A VA Decision letter, 4 August 2017, reflects an evaluation of 100 percent for PTSD and TBI. The applicant's AMHRR is void of a mental status report. The applicant contends did not receive any assistance from the chain of command. The applicant states drinking and going AWOL were ways to cope with the demons. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant's 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 will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The third-party statements provided with the application speak of the applicant's behavioral issues. They all recognize the applicant's troubles before and after leaving the Army. The applicant contends obtaining employment. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in- service misconduct was an aberration and not indicative of the member's overall character. 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: Post Traumatic Stress Disorder and Traumatic Brain Injury. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for Post Traumatic Stress Disorder and Traumatic Brain Injury, and he was diagnosed with Post Traumatic Stress Disorder on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that applicant is service connected for Post Traumatic Stress Disorder and Traumatic Brain Injury with additional supporting documentation for both conditions. The presence of Post Traumatic Stress Disorder and Traumatic Brain Injury result in partial mitigation of conduct associated with discharge. The natural history and sequelae of Post Traumatic Stress Disorder includes avoidance behaviors and therefore generally mitigates episodes of absent without leave cited in the basis of separation (and other Failure To Report noted in record); all such absent without leave appear to be subsequent to his deployment and exposure to trauma leading to Traumatic Brain Injury and service-connected Post Traumatic Stress Disorder. However, the advisor notes that at least one period of absent without leave, beginning in July 2011, does not appear fully consistent with Post Traumatic Stress Disorder-related avoidance nor does it appear to be due to Traumatic Brain Injury-related impairment. Records suggest he willfully chose to be with his wife who was giving birth, knowing the consequences for such behavior, and remained absent for two months. Applicant was also charged with wrongful use of cocaine; Post Traumatic Stress Disorder mitigates such misconduct due to the nexus between the disorder and illicit substance use as a means of self-medicating Post Traumatic Stress Disorder-related distress. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Post Traumatic Stress Disorder and Traumatic Brain Injury outweighed the absent without leave basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends being diagnosed with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). The Board determined that this contention was valid and voted to upgrade the characterization of service due to Post Traumatic Stress Disorder and Traumatic Brain Injury mitigating the applicant's absent without leave misconduct. (2) The applicant contends not receiving any assistance from the chain of command and states drinking and going AWOL were ways to cope with the demons. The Board considered this contention and determined that there is insufficient evidence in the applicant's official record or provided by the applicant that the applicant was not provided sufficient access to behavioral health or substance abuse resources (3) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. (4) The third-party statements provided with the application speak of the applicant's behavioral issues. The Board recognizes this contention, the applicant's assertion and the board proceedings along with the totality of the applicant's service record. (5) The applicant contends obtaining employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. c. The Board determined that based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (Post Traumatic Stress Disorder and Traumatic Brain Injury) determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation 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 Post Traumatic Stress Disorder mitigated the applicant's misconduct of absent without leave. 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 due to the significance of service limiting diagnosis. 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 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 AR20210001814 1