1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is honorable. The applicant through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, undeniably suffering from PTSD in August 2005. The applicant sought treatment after the Army would not provide the applicant any treatment. Then the applicant attempted suicide when the command opted to send the applicant back to Afghanistan rather than trying to get the applicant healthy again. After the applicant survived the suicide attempt, the command then attempted to prosecute the applicant for alleged UCMJ violations. In recent years the Department of Defense has realized how badly they mishandled service members with PTSD, made evident by the alarmingly high suicide rate amongst veterans. Federal laws, directives, and regulations have been enacted to protect these at-risk service members. Unfortunately, these protections came about too late to protect the applicant when the applicant was being discharged. This honorable Board now has the opportunity to correct the mistakes made by the chain of command in 2005. b. Board Type and Decision: In a records review conducted on 1 December 2022, 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: Secretarial Authority / AR 635-200, Para 5-3 / JFF / RE-4 / Honorable b. Date of Discharge: 7 December 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 28 September 2005, the applicant was charged with: Charge I: Violation of the UCMJ, Article 86. The Specification: On or about 7 August 2005, without authority the applicant was absent from the place of duty and did remain so absent until on or about 25 August 2005. Charge II: Violation of the UCMJ, Article 92. The Specification: On or about 26 August 2005, fail to obey a lawful order. Charge III: Violation of the UCMJ, Article 115. The Specification: On or about 26 August 2005, a time of war, for the purpose of avoiding duty as an Infantryman, intentionally injured oneself by drinking lighter fluid and by ingesting about sixteen 25-milligram tablets of the prescription drug Seroquel, also known as Quetiapine Fumarate. Charge IV: Violation of UCMJ, Article 87. Specification 1: On or about 27 August 2005, through design miss the movement of a bus bound for military airport in Germany, upon which the applicant was required in the course of duty to move. Specification 2: On or about 27 August 2005, through design, miss the movement of a military aircraft enroute to Afghanistan in support of Operation Enduring Freedom, upon which the applicant was required in the course of duty to move (2) Legal Consultation Date: Undated (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: 23 November 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 September 2002 / 4 years b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / 107 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 3 years, 2 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Italy / NIF f. Awards and Decorations: ARCOM, AGCM, NDSM, ASR, OSR, CIB, ACM, GWOTSM, GWOTEM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Military Police Report, dated 16 August 2005, reflects the unit failed to report the incident to the provost marshal office. An investigation revealed on or about 23 July 2005, the applicant departed Afghanistan enroute to Cleveland, Ohio for rest and recuperation leave, with an end date of 6 August 2005. On 6 August 2005, the applicant failed to report to Germany to board the flight back to Afghanistan. At 0900 hours, on 7 August 2005, the applicant’s status was changed from present for duty to absent without leave. Further investigation revealed on 0600 hours, 25 August 2005, the applicant returned to military control at Caserma Ederle, Italy. Military Police Report, dated 27 August 2005, preliminary investigation revealed the applicant consumed an unknown amount of zippo lighter fluid and quetiapine tablet while preparing to redeploy to Afghanistan scheduled for 0100, 27 August 2005. An ambulance was dispatched to the scene and transported the applicant to San Bartolo hospital, Vincenza where the applicant was admitted for observation. Further investigation reveled the applicant intentionally injured oneself to keep from redeploying as scheduled. According to a sworn statement the applicant stated the applicant could not take it anymore and could not go back (Afghanistan), while awaiting the arrival of the ambulance. The applicant was charged with the offense of Malingering (Self Inflicted Injury) (Article#115, UCMJ) (On Post) and Suicide (Gesture) (Article#134, UCMJ) (On Post). i. Lost Time / Mode of Return: 18 days: (AWOL: 7 August 2005 – 25 August 2005) / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: Physical Profile, dated 29 August 2005, reflects the applicant had the following medical conditions: Borderline personality disorder, Etoh Abuse, S/P suicide attempt by OD with Seroquel tablets; Past Dx of Panic disorder (early remission), occ problems. The applicant provided a copy of VA Rating Decision letter, dated 1 October 2014, which reflects the applicant was granted 70 percent disability for posttraumatic stress disorder with panic attacks (previously diagnosed with depressive disorder). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; attorney brief with listed exhibits. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has received a Bachelor of Arts degree and is working hard every day to improve. The applicant is now a successful and valuable member of the community and is planning on starting a family very soon. 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) Chapter 5, provides for the basic separation of enlisted personnel for the convenience of the government. (4) Paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. (5) Chapter 5-3 (Chapter 15 current regulation) provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army’s best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided 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 identified the SPD code of “JFF” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-3, Secretarial Authority. 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 record of service, the issues and documents submitted with the application were carefully reviewed. 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 suffering from PTSD. The applicant provided a copy of VA Rating Decision Letter, dated 1 October 2014, which reflects the applicant was granted 70 percent disability for posttraumatic stress disorder with panic attacks (previously diagnosed with depressive disorder). The applicant’s Army Military Human Resource Record (AMHRR) contains documentation which supports a diagnosis of in-service depression. A Physical Profile, dated 29 August 2005, reflects the applicant had the following medical conditions: Borderline personality disorder, Etoh Abuse, S/P suicide attempt by OD with Seroquel tablets; Past Dx of Panic disorder (early remission), occ problems. The AMHRR does not contain a mental health evaluation. The applicant contends seeking treatment after the Army would not provide any, and then attempted suicide when the command opted to send the applicant back to Afghanistan. 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 AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant’s good conduct after leaving the Army. The applicant has received a Bachelor of Arts degree and is working hard every day to improve. The applicant is now a successful and valuable member of the community and is planning on starting a family very soon. The Army Discharge Review Board is authorized to consider post- service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The Board’s Medical Advisor, a voting member, reviewed DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A 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 suffering from PTSD. The Board considered this contention and determined that since the applicant already holds an HD with Secretarial Authority from a prior ARBA Board, further relief is not applicable. (3) The applicant contends seeking treatment after the Army would not provide any, and then attempted suicide when the command opted to send the applicant back to Afghanistan. The Board considered this contention and determined that since the applicant already holds an HD with Secretarial Authority from a prior ARBA Board, further relief is not applicable. (4) The applicant has received a Bachelor of Arts degree and is working hard every day to improve. The applicant is now a successful and valuable member of the community and is planning on starting a family very soon. The Board considered this contention and determined that since the applicant already holds an HD with Secretarial Authority from a prior ARBA Board, further relief is not applicable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. 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 characterization of service due to it already being Honorable with no further relief available. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts (no further relief available), 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 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 AR20210002323 1