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, having good service and while in basic training and AIT, the applicant graduated from both with honors. At the applicant's first duty station, the applicant volunteered to deploy with a unit because they were undermanned, and the applicant believed it was their job to step in. At the first duty station, the applicant also received the highest PT scores and highest rifle range score every time the applicant was tested. The applicant moved through the ranks quickly and went in front of the E-5 board with 23 months in the Army. The applicant has received numerous awards and completed the first term of service honorably. During the applicant's time home from the first deployment, the applicant met a person whom the applicant married. They were together approximately four months before the spouse became pregnant. The child was born and a month later, the applicant was deployed to Iraq for a second time. While the applicant was deployed, the applicant saw many hostile acts and was blown up multiple times by enemy IED and EFP. While the applicant was coping with the deployment, the spouse was living with another opposite sex person and was not speaking to the applicant. After the 12 month deployment, the applicant returned to the states and attempted to fix the marriage in hopes to save the family. While attempting to save the family, the applicant found out the child may not be the applicant's and the applicant found out the spouse was engaged to the other person while living with the applicant. The applicant moved out and moved on post into the barracks. While living in the barracks, the applicant was giving the spouse $886 a month for rent however the spouse did not think it was enough and told the applicant if the applicant did not give $1400 a month the spouse would go to the unit and make the applicant's life hard. The spouse went to the unit and told them the applicant was having an affair and had the spouse's cousin, who the applicant never had an affair with, tell the commander they slept together. The commander was angry at the applicant and would not listen to the applicant and told the applicant they were giving the applicant 45 days extra duty; 45 days restriction; and loss of pay. The applicant had no one to talk to and believed their life was crumbling. The applicant made a poor decision and regrets it every day. The applicant has been diagnosed with TBI and PTSD and sees a therapist every week. The applicant applied for benefits from the military because the applicant needs help and knows they served under honorable conditions even though the discharge states otherwise. The applicant needs the benefits to receive medical help and has no other way of receiving help. The applicant has waited a few years to ask for help not knowing where to go or how to start the process. The applicant realizes they cannot fix the mistakes however is a veteran who has learned from the mistakes and who served the country under honorable conditions and deployed multiple times to fight for this country and while deployed was injured fighting for the country. b. Board Type and Decision: In a records review conducted on 13 April 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's TBI, Depression, and PTSD diagnoses mitigating applicant's AWOL and disrespect toward a Noncommissioned Officer basis for separation. 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, 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 16 August 2011 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 22 July 2011, the applicant was charged with: Charge I: Violating Article 86, UCMJ. Specification 1: On or about 18 June 2011, the applicant was absent from the unit until on or about 12 July 2011. Specification 2: On or about 15 July 2011, the applicant was absent from the unit until on or about 20 July 2011. Charge II: Violating Article 91, UCMJ. The Specification: On or about 4 April 2011, the applicant was disrespectful in deportment toward SFC G. H., by throwing a hat at the wall and throwing hands up in a threatening manner. (2) Legal Consultation Date: 22 July 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: 4 August 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 November 2010 / 4 years b. Age at Enlistment / Education / GT Score: 24 / High School Graduate / 95 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13B20, Cannon Crewmember / 4 years, 3 months, 6 days d. Prior Service / Characterizations: RA, 10 April 2007 - 5 November 2010 / HD e. Overseas Service / Combat Service: SWA / Iraq (7 December 2007 - 9 February 2009 and 23 Mach 2010 - 12 March 2011) f. Awards and Decorations: ARCOM-3, AGCM, NDSM, GWOTSM, ICM-CS-4, NCOPDR, ASR, OSR-2 g. Performance Ratings: 1 September 2010 - 5 August 2011 / Marginal h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 15 June 2011, for being disrespectful in deportment toward SFC G. H., on or about 4 April 2011; and failing to obey a lawful order issued by SSG D. M. on or about 1 April 2011. The punishment consisted of illegible Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 18 June 2011; From "AWOL" to "PDY," effective 12 July 2011; From "PDY" to "AWOL," effective 15 July 2011; From "AWOL" to "Dropped From Rolls (DFR)," effective 15 July 2011; and, From "DFR" to "PDY," effective 20 July 2011. Numerous Developmental Counseling Forms, for various acts of misconduct. Charge sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: 29 days: AWOL, 18 June 2011 - 17 July 2011 / Apprehended AWOL, 15 July 2011 - 20 July 2011 / NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; DD Form 214; third-party 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.) 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaivable 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 good service, including two combat tours. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28. The applicant contends family issues affected behavior and ultimately caused the discharge. 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 contends the spouse went to the Commander and made false allegations about the applicant having an affair which was not true, and the Commander punished the applicant with 45 days extra duty; 45 days restriction; and loss of pay. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends having no one to talk to and believed their life was crumbling. The applicant made a poor decision and regrets it every day. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling and the imposition of non-judicial punishment. The applicant contends being diagnosed with TBI and PTSD. The applicant's AMHRR contains no documentation of TBI or PTSD diagnosis. The applicant did not submit any evidence, other than the applicant's statement, to support the contention the discharge resulted from any medical condition. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends an upgrade of the discharge would allow veterans 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. The third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant's good conduct after leaving the Army. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: Concussion, TBI, Depression, PTSD, Bipolar Disorder. (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 Depression and TBI. Applicant is also diagnosed and service connected by the VA for combat-related PTSD. Service connection establishes that applicant's PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that applicant has BH conditions that fully mitigate the basis for separation. Applicant was diagnosed in service with Depression and TBI. Applicant is also diagnosed and service connected by the VA for combat- related PTSD. Given the nexus between PTSD, Depression, and avoidance, applicant's BH conditions more likely than not contributed to applicant's AWOLs. Also, given the nexus between PTSD and difficulty with authority, as well as the nexus between TBI and difficulty with impulse control, applicant's BH conditions also likely contributed to the incident of disrespect. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's TBI, Depression, and PTSD outweighed the AWOL and disrespect toward a Noncommissioned Officer basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends good service, including two combat tours. 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. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention and determined the applicant's TBI, Depression and PTSD affected applicant's behavior. Ultimately, the Board voted to upgrade the applicant's discharge. (3) The applicant contends the spouse went to the Commander and made false allegations about the applicant having an affair which was not true, and the Commander punished the applicant with 45 days extra duty; 45 days restriction; and loss of pay. The Board considered this contention and determined there is insufficient evidence to support this contention, however, the Board voted to upgrade the discharge due to applicant's TBI, Depression and PTSD mitigating the misconduct of AWOL and disrespect toward a Noncommissioned Officer. (4) The applicant contends having no one to talk to and believed their life was crumbling. The applicant made a poor decision and regrets it every day. 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, Depression and PTSD fully outweighing the applicant's AWOL and disrespect toward a Noncommissioned Officer basis for separation. (5) The applicant contends being diagnosed with TBI and PTSD. The Board determined that this contention was valid and voted to upgrade the characterization of service due to TBI, Depression and PTSD mitigating the applicant's AWOL and disrespect toward a Noncommissioned Officer basis for separation. (6) The applicant contends an upgrade of the discharge would allow veterans 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 TBI, Depression, and PTSD diagnoses mitigating applicant's AWOL and disrespect toward a Noncommissioned Officer basis for separation. 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, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's TBI, Depression, and PTSD diagnoses mitigated applicant's misconduct of AWOL and disrespect toward a Noncommissioned Officer. 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 Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 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 AR20210002027 1