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, despite the mistakes, which led to the discharge, the board should consider the applicant was a good Soldier throughout most of the seven and a half years of service. The board should consider the entire service rather than just on the mistakes made which ended the service. An upgrade is requested for personal reasons relating to the pride in all the applicant's good service, and to become eligible for VA healthcare. b. Board Type and Decision: In a records review conducted on 23 May 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD and TBI outweighing the basis for separation - positive UA for THC, possession of THC, and FTRs. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 29 December 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 October 2005 (2) Basis for Separation: The applicant was informed of the following reasons: On 11 May 2005, failing to go at the time prescribed to the appointed place of duty, violation of Article 86, UCMJ. On 12 May 2005, failing to go at the time prescribed to the appointed place of duty, violation of Article 86, UCMJ. On 18 July 2005, failing to go at the time prescribed to the appointed place of duty, violation of Article 86, UCMJ. On 1 May 2005, failing to go at the time prescribed to the appointed place of duty, violation of Article 86, UCMJ. Between 14 May and 14 June 2005, had a positive urinalysis for Marijuana (THC), violation of Article 112a, UCMJ. On 8 August 2005, was in possession of contraband testing positive for Marijuana (THC), violation of Article 112a, UCMJ. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 25 October 2005 (5) Administrative Separation Board: On 25 October 2005, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 16 December 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 June 2001 / 5 years b. Age at Enlistment / Education / GT Score: 23 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K20, M1 Armor Crewman / 7 years, 6 months, 4 days d. Prior Service / Characterizations: RA, 28 May 1998 - 2 June 2001 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (19 March 2004 - 18 March 2005) f. Awards and Decorations: ARCOM-4, AAM-4, AGCM, NDSM, KDSM, AFEM, NCOPDR, ASR, NATOMDL, GWOTEM, GWOTSM g. Performance Ratings: July 2002 - June 2003 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 8 October 2003, for failing to go at the time prescribed to the appointed place of duty, to wit: 0630 hours accountability formation on 25 September 2003; being derelict in the performance of duties by failing to remove body piercing on post on 25 September 2003; and being drunk and disorderly on 25 September 2003. The punishment consisted of a reduction to E-4; forfeiture of $874 pay per month for two months; and extra duty and restriction for 45 days (while deployed to NTC, punishment suspended until return to garrison). CG Article 15, dated 16 June 2005, for failing to go at the time prescribed to the appointed place of duty, to wit: 0630 accountability formations on 11 and 12 May 2005. The punishment consisted of a forfeiture of $514 pay (suspended); and extra duty and restriction for 14 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 27 June 2005, reflects the suspended portion of the punishment imposed on 16 June 2005, was vacated for violation of Article 86, UCMJ, failing to go at the time prescribed to the appointed place of duty, to wit: 1230 change of command formation on 23 June 2005. FG Article 15, dated 11 July 2005, for wrongfully using marijuana (between 14 May and 14 June 2005). The punishment consisted of a reduction to E-4; forfeiture of $500 pay per month for two months (suspended); restriction for 45 days (suspended); and extra duty for 45 days. Two Personnel Action forms reflect the applicant's duty status changed as follows: from "Present for Duty (PDY)," to "Confined by Civil Authorities (CCA)," effective 13 September 2005, and from "CCA" to "PDY," effective 11 October 2005. Civilian District Court Judgment of Conviction reflects on 26 September 2005, the applicant was found guilty of the offense of evading an arrest or detention on 22 May 2005, after a plea of guilty and in accordance with a plea bargain agreement, the court suspended the imposition of sentence as to imprisonment and placed the applicant on community supervision for a period of three years with stipulations. i. Lost Time / Mode of Return: 28 days (CCA, 13 September - 10 October 2005) / Released from Confinement j. Behavioral Health Condition(s): (1) Applicant provided: Patient Progress Notes, dated 25 November 2019, reflect the assessment and diagnoses were anxiety/depression/PTSD symptoms, and treatment by medication for anxiety and depression, and the applicant had declined the recommended therapy at the time. Patient Progress Record, dated 20 August 2013, reflects the applicant was referred for counseling for PTSD symptoms and depressive symptoms, and would further benefit from continued counseling to address both direct and indirect effects of the PTSD. Amarillo VA Health Care letter, undated, reflects the results of the TBI evaluation administered on 18 December 2019, revealed the applicant had a traumatic brain injury, and was advised of a mental health referral for depression and PTSD. The applicant was further advised the importance of following up on treatment for the TBI, PTSD, depression, and anxiety. (2) AMHRR Listed: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; three third-party letters; Progress Record; and DD Form 214. Additional Evidence: Progress Notes (Mental Health Note); ARCOM certificate; Progress Record; and VA Health Care letter. 6. POST SERVICE ACCOMPLISHMENTS: Third-party letter indicates the applicant maintains employment with the Legacy Farms. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. 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 contends the board should consider the applicant was a good Soldier throughout most of the seven and a half years of service. The applicant contends an upgrade would also provide eligibility for VA healthcare. Eligibility for veterans' 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 applicant's documentary evidence reflects on the applicant's behavioral health issues. The applicant provided several medical documents indicating diagnoses of PTSD, depression, anxiety, and TBI, and prescribed medications. The applicant's medical record confirms the applicant's behavioral health diagnosis. The applicant's third-party letter indicates the applicant maintaining employment with the Legacy Farms. 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. The third-party statements provided with the application speak highly of the applicant's character, behavioral health challenges, and recognize the good conduct and performance 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/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for PTSD and has evidence of service- related (but not service-connected) TBI in applicant's VA records. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that the applicant's PTSD mitigates the applicant's post-deployment failure to report and drug use/possession offenses as there is a nexus between PTSD and avoidance and self- medication. However, the applicant's post-deployment PSTD and TBI, regardless of VA service-connection, does not mitigate the applicant's pre-deployment misconduct (failure to report, dereliction, drunk and disorderly) that was considered by the Separation Authority at the time the applicant's discharge because the triggering event leading to the applicant's PTSD diagnosis occurred during the applicant's Iraq deployment 19 March 2004 - 18 March 2005. Further, the applicant's PTSD and TBI do not mitigate the applicant's offense of evading detention or arrest, as there is no nexus between PTSD and TBI and these offenses. (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 PTSD outweighed the applicant's medically mitigated basis for separation - drug positive for THC, possession of THC, and FTRs warranting discharge upgrade to General. The Board determined that an Honorable discharge was not warranted based on the applicant's pre-deployment medically unmitigated offenses considered by the Separation Authority at the time of the applicant's separation - failure to report, dereliction, drunk and disorderly and evading detention/arrest. b. Response to Contention(s): (1) The applicant contends the board should consider the applicant was a good Soldier throughout most of the seven and a half years of service. The Board considered this contention and determined that, while the applicant's PTSD outweighed the medically mitigated FTRS and drug use/possession offenses, the applicant's pre-deployment misconduct - failure to report, dereliction, drunk and disorderly and evading detention/arrest diminished the quality of the applicant's service below meritorious service warranted for an HD upgrade. (2) The applicant contends an upgrade would also provide eligibility for VA healthcare. 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. (3) The applicant's documentary evidence reflects on the applicant's behavioral health issues. The applicant provided several medical documents indicating diagnoses of PTSD, depression, anxiety, and TBI, and prescribed medications. The Board found validity in this contention and determined that the applicant's basis for separation was outweighed by the applicant's PTSD. c. The Board determined the discharge is inequitable based on the applicant's PTSD and TBI outweighed the medically mitigated basis for separation - positive UA for THC, possession of THC, and FTRs. The applicant has exhausted the applicant appeal options available with ADRB. The applicant may still apply to the Army Board for Correction of Military Records. 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 PTSD and TBI outweighed the basis for separation - Positive UA for THC, possession of THC, and FTRs. Thus, the prior characterization is no longer appropriate. The Board determined a partial upgrade of the characterization of service was appropriate as the applicant's pre-deployment service record includes medically unmitigated misconduct of FTR, being drunk and disorderly, dereliction of duty, and evading detention/arrest. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code as the reason the applicant was discharged was both proper and equitable. (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: No Change d. Change RE Code to: No Change e. Change Authority to: No Change 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 AR20210002065 1