1. CHApplicant'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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, being in the service from 16 September 1983 to 30 August 2006. The applicant has always maintained excellent records of accomplishment and has achieved much in the military. The applicant received several awards, decorations, certifications, and letters for performance. The applicant served proudly in the campaign for Operation Enduring Freedom in Germany, Kuwait, and Iraq under the 773rd Transportation Company from 1 November 2002 to 27 July 2003. The unit sent the applicant to Fort Drum for a mental status evaluation on 30 November 2005, based on what the command thought was bad conduct from the applicant, which was a medical condition from Iraq. The unit chose to let time pass by and refused the applicant the opportunity to reenlist rather than seek help for the applicant. The applicant believes the applicant was discharged before reenlisting because the commander believed the applicant was unfit because of the applicant's medical condition. The commander should have referred the applicant to a medical evaluation board to make the proper determination. The commander tried to have the applicant sign a bar-to-reenlistment, but the applicant sought assistance from the local Judge Advocate General's office to prevent the commander from harassing the applicant regarding the bar to reenlistment. Before the applicant was assigned to the 1018th Quarter Master Company, the applicant served in the Army National Guard and the United States Army Reserve. The applicant was discharged from the services with an honorable discharge. After the discharge, the applicant sought medical attention at the Department of Veterans Affairs (VA) hospital. The applicant continues to receive medical attention from the VA. The applicant has been diagnosed with some medical issues, including post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and others. The applicant does not let those issues affect or get in the applicant's way because of the new tools the applicant has learned during these past years. The applicant desires to pursue an education to become a better person, a role model for the applicant's children, and to further the applicant's life. b. Board Type and Decision: In a records review conducted on 17 November 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (TBI and PTSD diagnoses), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board determined the reentry eligibility (RE) code 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: Pattern of Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 31 August 2006 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 August 2003 / 3 years b. Age at Enlistment / Education / GT Score: 38 / NIF / 108 c. Highest Grade Achieved / MOS / Total Service: E-5 / 63B20, Wheeled Vehicle Mechanic / 22 years, 11 months, 15 days. d. Prior Service / Characterizations: ARNG, 16 September 1983 - 1 May 1990 / HD IADT, 9 January 1984 - 14 July 1984 / HD (Concurrent Service) ADT, 9 October 1987 - 19 January 1988 / HD (Concurrent Service) AD, 17 February 1989 - 19 July 1989 / NIF (Concurrent Service) ARNG, 2 May 1990 - 1 May 1991 / HD USARCG, 2 May 1991 - 15 July 1991 / NA ARNG, 16 July 1991 - 1 January 1995 / NA USARCG, 2 January 1995 - 14 April 1996 / NA ARNG, 15 April 1996 - 20 June 1998 / HD USARCG, 21 June 1998 - 24 October 2002 / NA USAR, 14 May 1998 - 16 November 1999 / HD USARCG, 17 November 1999 - 24 August 2003 / NA AD, 1 November 2002 - 24 August 2003 / HD (Concurrent Service) e. Overseas Service / Combat Service: Germany, SWA / Iraq-Kuwait (27 November 2002 - 24 July 2003) f. Awards and Decorations: AAM-2, ARCAM-4, NDSM-2, GWOTSM, NCOPDR, ASR, AFRM-2, AFRM-MD/XD, ARCOTR g. Performance Ratings: November 2011 - October 2004 / Fully Capable November 2004 - October 2005 / Unmarked h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 3 August 2005, for failing to go at the time prescribed to the appointed place of duty (16 May 2005) and being disrespectful in language and deportment toward Chief Warrant Three S. D., a warrant officer, by saying, "I'm not going anywhere, Get the hell out of my house," and "I'm tired of your bullshit and your games and leave me alone" (16 May 2005). The punishment consisted of a forfeiture of $571 pay (suspended). Record Of Supplementary Action Under Article 15, UCMJ, dated 3 November 2005, reflects the suspended portion of the punishment imposed on 5 August 2005, was vacated for: Article 86, failure to go at the time prescribed to the appointed place of duty (9 September 2005). The applicant's DD Form 214, reflects the applicant had completed the first full term of service. The applicant was discharged under the authority of AR 635-200, paragraph 14-12b, with a narrative reason of Pattern of Misconduct. The DD Form was authenticated with the applicant's signature. The applicant was reduced from E-5 to E-4, effective 2 June 2006. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided VA Medical Center (VAMC) Progress Notes dated 18 December 2017, which reflects the applicant was diagnosed with: PTSD, chronic; moderate stress; TBI; cocaine use disorder; cocaine abuse; cocaine dependence in remission; alcohol disorder; sleep disorder, unspecified. The VA rated the applicant 90 percent disability for PTSD and 30 percent for migraine headaches. 5. APPLICANT-PROVIDED EVIDENCE: Multiple DD Forms 214; DD Form 293; NGB Form 22; self- authored statement; Program New Student Meeting letter; military service documents; civilian academic documents; VA Progress Notes; eBenefits Disabilities Webpage. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends being on the President's List for Southern Technical College and attaining a 4.0 Grade Point Average (GPA) or greater. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. 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-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. 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 record of service, the issues and documents submitted with the application were carefully reviewed. The applicant's Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. The applicant's AMHRR does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12b, by reason of Pattern of Misconduct, with a characterization of service of general (under honorable conditions). The applicant contends PTSD and TBI affected behavior which led to the discharge and being diagnosed with PTSD, TBI, and other medical conditions by the VA. The applicant provided medical document reflecting the applicant was diagnosed by the VA with: PTSD, chronic; moderate stress; TBI; cocaine use disorder; cocaine abuse; cocaine dependence in remission; alcohol disorder; sleep disorder, unspecified. The VA rated the applicant 90 percent disability for PTSD and 30 percent for migraine headaches. The AMHRR is void of a mental status evaluation. The applicant contends harassment by a member of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The applicant contends the commander believed the applicant was unfit and should have referred the applicant to a medical evaluation board for a proper determination. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends an upgrade would allow educational benefits through the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends being on the President's List for Southern Technical College and attaining a 4.0 Grade Point Average (GPA) or greater. 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? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: PTSD, TBI. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service connected by the VA for PTSD. Service connection establishes that applicant's PTSD existed during military 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 while the full facts and circumstances of applicant's discharge are not in applicant's file, the Board voted to accept that the basis of separation was two FTRs and disrespect. Given the nexus between PTSD, avoidance, and difficulty with authority, there may have been some association between applicant's PTSD and the FTRs and disrespect. Therefore, the misconduct that the Board voted to accept as the basis for separation is medically mitigated. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's TBI and PTSD outweighed the accepted basis for separation, FTR and disrespect. b. Response to Contention(s): (1) The applicant contends PTSD and TBI affected behavior which led to the discharge and being diagnosed with PTSD, TBI, and other medical conditions by the VA. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the applicant's TBI and PTSD outweighed the accepted basis for separation, FTR and disrespect. (2) The applicant contends harassment by a member of the chain of command. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant's TBI and PTSD outweighed the accepted basis for separation, FTR and disrespect. (3) The applicant contends good service, including a combat tour. 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. (4) The applicant contends the commander believed the applicant was unfit and should have referred the applicant to a medical evaluation board for a proper determination. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's TBI and PTSD fully outweighing the applicant's accepted basis for separation, FTR and disrespect. (5) The applicant contends an upgrade would allow educational benefits through the GI Bill. The Board 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. (6) The applicant contends being on the President's List for Southern Technical College and attaining a 4.0 Grade Point Average (GPA) or greater. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board determined that the applicant's TBI and PTSD fully outweighing the applicant's accepted basis for separation, FTR and disrespect. c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, the circumstances surrounding the discharge (TBI and PTSD diagnoses), and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN. The Board determined the reentry eligibility (RE) code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's TBI and PTSD mitigated the applicant's misconduct of FTR and disrespect. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted not to change the RE code due to applicant's service limiting TBI and PTSD. The current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change 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 AR20210002392 1