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, having post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health issues. The applicant is an Iraq War veteran who served in Operation Iraqi Freedom from August 2009 to August 2010. The applicant was recently made aware of “The Veterans Fairness Act.” The applicant is a veteran of the Army who suffers from mild post-traumatic stress disorder (PTSD), diagnosed by the Madigan Medical Facility, Joint Base Lewis McChord. The applicant was discharged for not completing the service contract of three years. The applicant went absent without leave, three weeks before the applicant was to be honorably discharged from the military. The absence was caused by the applicant’s stress, anxiety, and personal issues. The applicant did not know how to cope with the PTSD. The applicant completed the remaining service time when the applicant returned to duty. The applicant was set up, which was proven by the special court-martial, and unlawfully served pre-trial confinement. The command involuntarily extended the applicant prior to the special court-martial. The applicant desires to obtain Department of Veterans Affairs (VA) medical benefits to better the applicant’s life and obtain permanent employment to contribute to society. b. Board Type and Decision: In a records review conducted on 2 February 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 9 March 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 December 2011 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was absent without leave (AWOL) from 17 May to 9 August 2011. The applicant, while in an AWOL status, unlawfully and knowingly took, enticed, or kept a minor, with whom the applicant had sexual relations, from the lawful custodian with the intent to hold the person permanently or for a protracted period of time. The applicant, upon returning from AWOL status, broke into unit buildings, offices, and supply areas; stole military equipment and personal property; and sold military equipment without authority. The applicant failed to report to the appointed place of duty on numerous occasions. The applicant disobeyed a superior noncommissioned officer. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 22 December 2011 (5) Administrative Separation Board: On 22 December 2011, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. On 26 January 2012, the applicant’s case was referred to an administrative separation board. On 27 January 2012, the applicant was notified to appear before an administrative separation board and advised of rights. On 13 February 2012, the administrative separation board convened, and the applicant was represented by counsel. The applicant was in confinement when the board convened. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 1 March 2012, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 1 March 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 August 2008 / 3 years / The Army Military Human Resource Record (AMHRR) is void of any enlistment contract retaining the applicant on active duty after the most recent enlistment period. b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 3 years, 2 months, 12 days d. Prior Service / Characterizations: ARNG, 15 July 2008 – 27 August 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (NIF) f. Awards and Decorations: AAM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Company Grade Article 15, dated 1 March 2011, for, on two occasions, failing to go at the time prescribed to the appointed place of duty (1 December 2010 and 18 January 2011). The punishment consisted of a reduction to E-2; forfeiture of $383 pay (suspended); and extra duty and restriction for 14 days. Record Of Supplementary Action Under Article 15, UCMJ, dated 21 March 2011, reflects the suspended portion of the punishment imposed on 1 March 2011, was vacated for: Article 86, failure to go at the time prescribed to the appointed place of duty (17 March 2011). Three Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective date 17 May 2011; From “AWOL” to “Dropped From Rolls (DFR),” effective date 17 June 2011; and From “DFR,” to “PDY,” effective date 9 August 2011. Report of Return of Absentee, dated 4 August 2011, reflects the applicant was apprehended by civilian authorities and returned to military control. Developmental Counseling Form, dated 16 September 2011, for failure to follow instructions. Field Grade Article 15, dated 23 September 2011, for being AWOL (17 May to 9 August 2011). The punishment consisted of a reduction to E-1; forfeiture of $733 pay (suspended); and extra duty and restriction for 45 days. Rights Warning Procedure/Waiver Certificate, dated 4 November 2011, reflects the applicant was under investigation by the Criminal Investigation Division (CID) for larceny, housebreaking, and conspiracy. The CID Report of Investigation – Final / SSI / Collateral, dated 9 December 2011, reflects the Jefferson County Sheriff’s Office and Salem Police Department established probable cause to believe the applicant committed the offenses of rape in the first degree, kidnapping, and custodial interference when the applicant took [redacted], age 12, away from the parent’s residence without the parent’s consent and subsequently engaged in sexual intercourse with [redacted] on three separate occasions between 23 and 24 July 2011. Report of Result of Trial reflects the applicant was tried in a Special Court-Martial on 19 December 2011. The applicant was charged with numerous specifications (missing page(s)). The summary of offenses, pleas, and findings: Violation of Article 121, Larceny: Between 1 and 30 November 2010, steal two guitars of a value of more than $500, the property of the United States Military; not guilty; (NIF); Between 3 and 30 August 2011, wrongfully appropriate a television of a value of $500 or less, the property of Private First Class A. B.; not guilty; (NIF); On 27 October 2011, steal a projector, a tactical light, and sunglasses, of a value of more than $500, the property of the United States Military; not guilty; (NIF); On 28 October 2011, steal cash and energy drinks, of a value of $500 or less, the property of the United States Military; not guilty; (NIF); On 29 October 2011, steal an Advanced Combat Helmet and a grappling hook, of a value of $500 or less, the property of the United States Military; not guilty; (NIF); On 29 October 2011, steal an iPod lock, of a value of $500 or less, the property of the United States Military; not guilty; (NIF); On 30 October 2011, six hard drives, compasses, pistol holders, and military eye protection goggles, of a value of more than $500, the property of the United States Military; not guilty; (NIF); Violation of Article 81, Conspiracy: On divers occasions, between 27 and 31 October 2011, conspire with Private R. K., to commit an offense under the UCMJ, to wit: larceny of military property of an aggregate value of more than $500 property of the United States military and in order to effect the object of the conspiracy the applicant and PVT K. did unlawfully break into the A Company headquarters building after duty hours and steal various pieces of military property; not guilty; (NIF); and Violation of Article 130, Burglary: On divers occasions between 27 and 30 October 2011, unlawfully enter Building 3627; not guilty; (NIF). Adjudged Sentence: To be confined for 60 days. The applicant was credited with 44 days of confinement towards the sentence to confinement: 39 days for presentence confinement and 5 days administrative credit for presentence confinement or restriction found tantamount to confinement. The AMHRR is void of a complete copy of the Report of Result of Trial, which would reflect the findings of each charge and specification. Circuit Court of the State of Oregon, dated 21 December 2011, reflects the applicant was named as a co-defendant and charged with rape in the second degree when the unlawfully and knowingly engage in sexual intercourse with K., a child under the age of fourteen years; and kidnapping in the second degree when the applicant unlawfully and knowingly, without consent or legal authority, take K., from one place to another, with intent to interfere substantially with the K’s personal liberty. Inmate’s Release Order, dated 22 December 2011, reflects the applicant was released from confinement at Fort Lewis Confinement Facility to the unit escorts on 24 December 2011. i. Lost Time / Mode of Return: 5 months, 15 days: AWOL, 17 May 2011 – 8 August 2011 / Apprehended by Civil Authorities CMA, 19 December 2011 – 23 December 2011 / Released from Confinement CCA, 24 December 2011 – 9 March 2012 / Discharged from the Service j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 22 November 2011, reflects the examining medical physician noted in the comments section: The applicant was involved in a motor vehicle accident, lost consciousness and transported to the emergency room. The applicant had no residual effects. The applicant had trouble sleeping after returning from deployment and was seen by Social and Rehabilitation Services (SRS). The applicant was referred to the nightmare clinic. Report of Mental Status Evaluation, dated 22 November 2011, 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. The applicant had been screened for PTSD and mTBI with positive results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The AXIS I, II, and III diagnoses was not applicable for the purpose of the evaluation. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; Two DD Forms 293; self-authored statement. 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 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. (6) 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. (7) 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-4 applies to a 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends PTSD and other mental health conditions affected behavior which led to the discharge. 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 applicant’s AMHRR shows the applicant underwent a mental status evaluation (MSE) on 22 November 2011, which indicates the applicant could understand and participate in administrative proceedings; could appreciate the difference between right and wrong; and met medical retention requirements. The applicant had been screened for PTSD and TBI with positive results. The conditions were either not present or did not meet AR 40-501 criteria for a medical evaluation board. The command was advised to consider the influence of these conditions. The AXIS I, II, and III diagnoses were not applicable for the purpose of the evaluation. The MSE was considered by the separation authority. The applicant contends being discharged for not completing the service contract of three years. The applicant’s AMHRR reflects the applicant was discharged for various acts of misconduct. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the special court-martial proved the applicant was set-up and unlawfully served pre-trial confinement. The applicant’s AMHRR reflects the judge-ordered 5 days administrative credit for presentence confinement or restriction found tantamount to confinement. The applicant plead not guilty to each charge and specification shown in the Result of Trial. The record shows the applicant was found guilty of at least one of the charges and sentenced to confinement for 60 days. The AMHRR is void of a complete copy of the Report of Result of Trial, and the findings are not revealed on the available pages of the form. The record is void of the record of trial. The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. 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. 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: Adjustment Disorder. Additionally, the applicant asserts having PTSD, TBI, and Anxiety during military service which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist, or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an adjustment disorder. Additionally, the applicant asserts having PTSD, TBI, and Anxiety during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor applied liberal consideration and opined that the applicant was diagnosed in service with an Adjustment Disorder, and the applicant self-asserts having PTSD, TBI, and Anxiety during military service. Applicant’s self-asserted PTSD should be considered by the Board given the nexus between PTSD and avoidance, as PTSD can contribute to AWOL and FTRs. However, it should be noted that there is no medical evidence to support applicant’s self-assertion of PTSD, TBI, or Anxiety. And there is no natural sequela between any of applicant’s BH conditions and unlawfully taking a minor, larceny, or failing to obey an NCO. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s adjustment disorder outweighs the basis for applicant’s separation - AWOL, unlawfully taking a minor, larceny and failure to obey an NCO for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends PTSD and other mental health conditions affected behavior which led to the discharge. The Board considered this contention and the applicant’s assertion of PTSD, TBI, and Anxiety. However, the Board determined that there is insufficient evidence of said diagnoses in official or medical records, and the applicant did not provide supporting documentation by a qualified medical professional to provide merit to the claim. Ultimately, the Board determined that the assertions alone did not outweigh the basis of separation due to going AWOL, unlawfully taking a minor, larceny and failure to obey an NCO. (2) The applicant contends being discharged for not completing the service contract of three years. The Board considered the totality of the applicant’s service record but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. By the misconduct of AWOL, unlawfully taking a minor, larceny and failure to obey an NCO. The applicant diminished the quality of service below that meriting an honorable discharge at the time of separations. (3) The applicant contends the special court-martial proved the applicant was set-up and unlawfully served pre-trial confinement. The Board considered this contention non-persuasive during its deliberations. There is no evidence of the command acting in an arbitrary or capricious manner and the applicant did not provide evidence to support the claim. (4) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (5) 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. 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, the applicant’s adjustment disorder diagnosis did not excuse or mitigate the offenses of AWOL, unlawfully taking a minor, larceny, or failing to obey an NCO. 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. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, 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 / Separation Order: No Change 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: 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 AR20210002310 1