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 Board considered the applicant for a upgrade to honorable. The applicant seeks relief contending, in effect, the applicant received an under other than honorable conditions discharge due to the applicant’s poor judgment upon return from operation Iraqi Freedom. The applicant suffers from PTSD symptoms and was unaware of the condition and the applicant’s actions. The applicant did not know how to cope with the environment changes. b. Board Type and Decision: In a records review conducted on 12 January 2023, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 5 October 2006 c. Separation Facts: d. Date and Charges Preferred (DD Form 458, Charge Sheet): On 6 September 2006, the applicant was charged with: The Charge: Violating Article 86, UCMJ: The Specification: On or about 16 February 2006, without authority, the applicant was absent from the unit and did remain so absent until being apprehended on or about 22 April 2006. (1) Legal Consultation Date: 8 September 2006 (2) 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 based on the applicant being charged with a violation of UCMJ, Article 86 (AWOL) on or about 16 February 2006 to 22 April 2006. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Separation Decision Date / Characterization: 12 September 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 13 January 2004 / 3 years b. Age at Enlistment / Education / GT Score: 22 / GED / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13B10, Cannon Crewmember / 2 years, 5 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (8 August 2004 – 27 July 2005) f. Awards and Decorations: NDSM, GWOTSM, KDSM, ICM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 5 October 2004, on or about 5 August 2004, unlawfully striking PV2 J. L. on the neck and face with a beer bottle; and, on or about 5 August 2004, being drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces. The punishment consisted of a reduction to E-1; forfeiture of $597 pay per month for two months. CG Article 15, dated 2 July 2005, for without authority, being absent from the unit on or about 15 May 2005 and did remain so absent until on or about 9 June 2005. The punishment consisted of a reduction to E-2 suspended; and extra duty for 14 days. Four Personnel Action Forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY),” to “Absent Without Leave (AWOL),” effective 6 September 2005; From “AWOL” to “PDY,” effective 8 September 2005; From “PDY” to “AWOL,” effective 22 October 2005; and, From “AWOL” to “PDY,” effective 23 November 2005. Army Substance Abuse Program (ASAP) Enrollment form, dated 9 September 2005, reflects the applicant was referred in the ASAP by the supervisor. State of Colorado, Uniform Summons Complaint or Penalty Assessment, dated 21 October 2005, reflects the applicant was charged with driving a vehicle while under the influence of alcohol and driving a vehicle with BAC of .08 or more (.102). Memorandum for Commander, dated 8 November 2005, reflects the applicant failed to attend the alcohol and Drug Abuse Prevention Program Training on 7 and 8 November 2005 as scheduled by the Army Substance Abuse Program Clinic. Memorandum for Commander, dated 9 November 2005, reflects the applicant failed to report for group counseling evaluation appointment on 2 and 9 November 2005 at the ASAP Clinic. Colorado Springs Municipal Court, Notice of Arrest Warrant Issuance, reflects a bench warrant was issued for the applicant’s arrest for failing to appear or comply with court orders on 14 November 2005. Memorandum for Commander, Confirmed Urinalysis Test Results, dated 29 December 2005, reflects, the applicant’s specimen was confirmed positive for Cocaine during an Inspection Random (IR) on 14 December 2005. Report of Mental Status Evaluation, dated 19 January 2006, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. Altus Police Department Incident Report, reflects between 21 April 2006 and 22 April 2006, the applicant was arrested for two charges of possession of marijuana with intent to distribute. District Court of Jackson County document, dated 19 May 2006, reflects the applicant entered a plea of guilty for possession of controlled substance a misdemeanor. It was ordered the applicant be sentenced to a term of one year in the county jail with all, but the first 120 days suspended with credit for jail time served; and the applicant was to pay a fine of $250.00. Numerous Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 99 days: AWOL, 6 September 2005 – 8 September 2005 / NIF AWOL, 22 October 2005 – 23 November 2005 / NIF AWOL, 16 February 2006 – 22 April 2006 / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: The applicant asserts PTSD in the DD 293. MSE in January 2006 does not indicate any PTSD diagnosis. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214. 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) 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. (5) 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. (6) 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 is being considered for an upgrade to HD. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends receiving an under other than honorable discharge due to the applicant’s poor judgment upon the applicant’s return from a deployment. The evidence of record shows the command attempted to assist the applicant in performing and conducting to Army standards by providing counseling, the imposition of non-judicial punishment, and referring the applicant to ASAP. The applicant’s Army Military Human Resource Record (AMHRR) does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends suffering from PTSD symptoms and being unaware of the applicant’s condition, action, or how to cope with the environment changes. The applicant’s AMHRR contains no documentation of 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 shows the applicant underwent a mental status evaluation (MSE) on19 January 2006, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis and was considered by the separation authority. 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 DoD and VA medical records and found that the applicant’s record does not reflect that the applicant had any behavioral health diagnoses. However, 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, based on liberal consideration, found that the applicant’s self-asserted PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. After applying liberal consideration, the Board’s Medical Advisor determined that the applicant’s asserted PTSD could mitigate the applicant’s AWOL offense that was the applicant’s basis of separation as there is a nexus between avoidance and PTSD. However, the Board Medical Advisor was unable to provide a medical opine on whether the applicant’s PTSD actually mitigates the applicant’s AWOL because there no medical evidence to support applicant’s asserted PTSD, the applicant was not diagnosed in service with any behavioral health conditions, the VA has not diagnosed or service connected any BH conditions, and the applicant did not provide any medical records to support the applicant’s asserted PTSD diagnosis. Without additional medical evidence and the Board Medical Advisor determined the applicant’s asserted PTSD does not mitigate the applicant’s discharge. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that, that while the applicant’s asserted PTSD could outweigh the applicant’s AWOL offense, the Board determined that the applicant’s asserted PTSD does not outweigh the applicant’s medically unmitigated AWOL offense based on insufficient medical evidence in the applicant’s official record or provided by the applicant. b. Response to Contention(s): (1) The applicant contends suffering from PTSD symptoms and being unaware of the applicant’s condition, action, or how to cope with the environment changes. The Board liberally considered this contention and the applicant’s asserted PTSD, however the Board determined that there is no medical evidence in the applicant’s official records or provided by the applicant to support the asserted PTSD. Without additional medical evidence, the Board determined that the applicant’s asserted PTSD does not outweigh the applicant’s medically unmitigated discharge. (2) The applicant contends receiving an under other than honorable discharge due to the applicant’s poor judgment upon the applicant’s return from a deployment. The Board considered this contention and determined that, based on the totality of the applicant’s record, a discharge upgrade is not warranted due to the serious nature of the applicant’s offense. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, that while the applicant’s asserted PTSD could outweigh the applicant’s AWOL offense, the Board determined that the applicant’s asserted PTSD does not outweigh the applicant’s medically unmitigated AWOL offense based on insufficient medical evidence in the applicant’s official record or provided by the applicant. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. Therefore, the applicant’s Under Other Than Honorable Conditions was proper and equitable as the applicant’s AWOL offense fell below that level of satisfactory service warranting an upgrade to a General Discharge or meritorious service warranted for an upgrade to Honorable Discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 / Separation Order: No b. Change Characterization to: No Change 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 AR20210002279 1