1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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 requests an upgrade to honorable and a change to the narrative reason for separation to Secretarial Authority. The applicant seeks relief contending, in effect, the request for changes to the narrative reason, separation code, and reentry code, is based on equity to determine whether the applicant as a highly skilled surgeon will be allowed to provide much needed care to service members when the basis for the discharge was a misconduct, an AWOL, which was induced by PTSD many years ago, and new evidence and enhanced consideration pursuant to the Hagel Memorandum and the terms of VVA v. DoD, 15-cv-0658 settlement. The additional evidence provided, and witness testimony and personal statement at the requested PA hearing will, in the principles of justice, fairness, and equity require changes to the narrative reason, separation code, and reentry code. A change to the reentry code will allow the applicant's reentry into the Service. Counsel further details the contentions in an allied legal brief, dated 1 August 2017, provided with the application. b. Board Type and Decision: In a records review conducted on 1 August 2023, and by a 4-1 vote, the Board, based on the applicant's Post Traumatic Stress Disorder outweighing the applicant's AWOL offense, determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the characterization of service was proper and equitable and voted not to change it. 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-3 / Honorable b. Date of Discharge: 3 August 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 6 July 2005, the applicant was charged with: The Charge: Violating Article 85, UCMJ, for being absent from 15 July 2004, and remained absent in desertion until 1 June 2005. (2) Legal Consultation Date: 24 July 2005 (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: 26 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 October 2002 / 4 years b. Age at Enlistment / Education / GT Score: 17 / High School Graduate / 126 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 11 months, 9 days d. Prior Service / Characterizations: USAR, 10 October 2001 - 30 June 2002 / NIF e. Overseas Service / Combat Service: SWA / Iraq (4 August 2003 - 20 March 2004) f. Awards and Decorations: VUA, AAM, ARCOM, NDSM, ICM, GWOTSM, ASR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 15 July 2004; From "AWOL" to "Dropped From Rolls (DFR)," effective 15 August 2004; and From "DFR" to "PDY," effective 1 June 2005. Report of Return of Absentee, date illegible, reflects the applicant, as a deserter, surrendered to military authorities at Fort Bragg. CG Article 15, dated 10 June 2005, for being absent in desertion (15 July 2004 to 1 June 2005). The punishment consisted of a reduction to E-1; forfeiture of $396 pay, and extra duty and restriction for 14 days. Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: 321 days (AWOL, 15 July 2004 - 31 May 2005) / Surrendered to Military Authorities j. Behavioral Health Condition(s): (1) Applicant provided: Veterans Administration Disability rating decision, dated 28 November 2007, reflecting the applicant was rated 70 percent disability for PTSD, Obsessive Compulsive Disorder (OCD), and major depression, also claimed as a mental health condition. (2) AMHRR Listed: HealthPartners University Avenue Clinic Psychotherapist letter, dated 17 June 2005, reflects the applicant had been in an intensive psychotherapy from 7 January to 16 May 2005. The applicant was diagnosed with PTSD, had developed symptoms of Obsessive Compulsive Disorder, and would need continued psychotherapy and medications. 82nd Airborne Division Psychiatrist memorandum, dated 23 June 2005, reflects an "Axis I" diagnoses of "Anxiety Disorder Not Otherwise Specified" and "Mood Disorder Not Otherwise Specified. The Psychiatrist indicated the applicant's military experiences were contributing factors to the development of the medical conditions and was being treated with medications and psychotherapy. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and Attorney-Brief with listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is a physician who graduated from Harvard Medical School and BIDMC with a residency in general surgery and currently a surgical critical care/trauma surgery fellow at Boston University Medical Center. The applicant has a diverse range of job experiences, professional appointments, degrees leading to a Doctor of Medicine and General Surgery Residency Certificate of Completion, and extra medical training, specifically, surgical, and scientific training. The applicant's résumé lists many more professional credentials, achievements, and recognitions. 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 635-40, paragraph 4-3f(1), states enlisted Soldiers who are approved for discharge in lieu of trial by court-martial are ineligible for referral to the MEB and PEB phases of the DES (see AR 635-200). If the Soldier is in the DES process, the applicant's DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial. e. 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 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. (4) 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.) f. 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. g. 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's Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant's AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635- 200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The honorable discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed to reflect Secretarial Authority. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the SPD code should be changed. The SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. The SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 10, is "KFS." The applicant requests a reentry eligibility (RE) code change. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends the misconduct, which led to the discharge, was induced by the PTSD many years ago. The applicant provided several medical documents indicating a diagnosis of PTSD and therapy treatment with medications, and the VA has granted a 70 percent disability for PTSD. The applicant's AMHRR contains no documentation of PTSD diagnosis and is void of a mental status evaluation. The applicant contends the additional evidence provided, and in the principles of justice, fairness, and equity, would require changes to the narrative reason, separation code, and reentry code. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third-party statements/letters provided with the application speak highly of the applicant's character and performance and recognize the applicant's good conduct and achievements as a highly skilled surgeon and scientist 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: Post Traumatic Stress Disorder, other specified trauma and stressor related disorder, obsessive compulsive disorder, major depression, anxiety disorder not otherwise specified, mood disorder not otherwise specified, episodic mood disorders. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for PTSD with numerous diagnoses to include other specified trauma and stressor related disorder, major depression, anxiety disorder not otherwise specified, mood disorder not otherwise specified, and episodic mood disorders which can all be subsumed under PTSD for the purpose of this opine. There is also evidence to support the presence of obsessive compulsive disorder during the period of active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that applicant's PTSD does mitigate the applicant's AWOL basis of separation. AWOL is an avoidance behavior, and avoidance is part of the natural history and sequelae of PTSD resulting in a nexus between PTSD and AWOL. (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 Post Traumatic Stress Disorder outweighed the applicant's AWOL basis of separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed to reflect Secretarial Authority. The Board considered this contention and determined the narrative reason should change to Misconduct (Minor Infractions) after considering applicant's mitigated basis for separation. The applicant's case does not warrant a change to Secretarial Authority as the applicant was involuntarily separated for misconduct, the applicant's PTSD does not fully excuse the applicant's responsibility for the misconduct. (2) The applicant requests a reentry eligibility (RE) code change. The Board considered this contention and voted to change the RE-code to a RE-3, which is a waivable code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes, if appropriate (3) The applicant contends the misconduct, which led to the discharge, was induced by the PTSD many years ago. The Board liberally considered this contention and determined that the applicant's PTSD does mitigate the applicant's AWOL misconduct. Therefore, the Board voted the change the applicant's narrative reason for separation to Misconduct (Minor Offenses), the associated SPD code to JKN, and the RE code to RE-3. (4) The applicant contends the additional evidence provided, and in the principles of justice, fairness, and equity, would require changes to the narrative reason, separation code, and reentry code. The Board considered this contention and determined the narrative reason should change to Misconduct (Minor Infractions) after considering applicant's mitigated basis for separation. The applicant's case does not warrant a change to Secretarial Authority as the applicant was involuntarily separated for misconduct, the applicant's PTSD does not fully excuse the applicant's responsibility for the misconduct. c. The Board, based on the applicant's Post Traumatic Stress Disorder outweighing the applicant's AWOL offense, determined the narrative reason for the applicant's separation is now inequitable. Therefore, the Board directed the issue of a new DD Form 214 changing the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the characterization of service was proper and equitable and voted not to change it. 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 determined the characterization of service is proper and equitable as a prior ADRB has upgraded the discharge with a Character of Honorable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) based on the applicant's Post Traumatic Stress Disorder outweighing the applicant's AWOL offense, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will change to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002365 1