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, before serving in combat, the applicant served honorably and creditably in basic and AIT and at the first permanent party station in Korea. The applicant returned to the U. S. and the next duty station was 1/9th Infantry, 3rd Combat Team, 4th Infantry Division. After the applicant in-processed, the unit was already deployed to Iraq. The applicant was sent to join the unit in September of 2003 at FOB McHenry, Iraq. The applicant returned from deployment in March 2004 and around one month after the return, the applicant experienced flashbacks, night terrors and profuse sweating. The applicant suffered from PTSD, anxiety, personality disorder, panic attacks, homicidal and suicidal thoughts. These symptoms caused the applicant to abuse drugs and alcohol and led the applicant to a destructive path to a court-martial and bad conduct discharge. Before and during combat, the applicant served well. Only after returning from Iraq did the applicant suffer symptoms of PTSD as well as other mental and physiologically disabling conditions. The applicant should have been treated for the mentioned conditions and given a disability discharge under honorable conditions or a general discharge under honorable conditions so the applicant could pursue care and treatment for combat-related illness. The applicant now goes to therapy once a week, is on the correct medications for residual symptoms of PTSD and can go day by day finding a sense of peace and hope in life again. The applicant is not the same person the applicant once was before the time in Iraq, nor will the applicant ever be. With the proper help and support, the applicant can hold a quality of life which the applicant believes is worth living again. b. Board Type and Decision: In a records review conducted on 20 October 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - AWOL, FTRs, disobeying a lawful order, and drug use 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 RE code is 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: Court-Martial (Other) / AR 635-200, Chapter 3 / JJD / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 26 September 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 4, dated 10 March 2005, the applicant was found guilty of the following: Charge I, in violation of Article 86: Specification 1: On or about 15 October 2004, being absent from the place of duty and did remain so absent until on or about 18 October 2004. Plea: Guilty. Finding: Guilty. Specifications 2: On or about 3 August 2004, failed to go at the time prescribed to the appointed place of duty. Plea: Guilty. Finding: Guilty. Specification 3: On or about 5 August 2004, failed to go at the time prescribed to the appointed place of duty. Plea: Guilty. Finding: Guilty. Specification 4: On or about 10 August 2004, failed to go at the time prescribed to the appointed place of duty. Plea: Guilty. Finding: Guilty. Specification 5: On or about 12 August 2004, failed to go at the time prescribed to the appointed place of duty. Plea: Guilty. Finding: Guilty. Specification 6: On or about 14 October 2004, failed to go at the time prescribed to the appointed place of duty. Plea: Guilty. Finding: Guilty. Charge II, in violation of Article 91. The Specification: Having received a lawful order from SSG H. R., willfully disobey the same. Plea: Guilty. Finding: Guilty. Charge III, in violation of Article 112a. Specification 1: Wrongfully use methamphetamines on or about 21 August 2004 and 23 August 2004. Plea: Guilty. Finding: Guilty. Specification 2: Wrongfully use marijuana, between on or about 23 July 2004 and 23 August 2004. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Forfeiture of $795 pay per month for three months; to be confined for 105 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date / Sentence Approved: 10 March 2005 / only so much of the sentence, forfeiture of $795 pay per month for three months, confinement for three months, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The deferment of adjudged and automatic forfeitures, which were approved on 12 January 2005, were terminated this date. The applicant was credited with 59 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 9 February 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 May 2002 / 3 years b. Age at Enlistment / Education / GT Score: 20 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 92F10, Petroleum Supply Specialist / 2 years, 5 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NIF f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 4 as described in paragraph 3c(1). Special Court-Martial Order Number 14, dated 9 February 2006, reflects the portion of the sentence extending to confinement had been served. Article 71(c) having been complied with, a Bad-Conduct Discharge would be executed. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of Adult, Child and Family Services, LLC, Diagnostic Assessment, dated 15 September 2020, reflects the applicant was being treated for PTSD and trauma response, anger management and Bipolar I symptom. The applicant provided a copy of Mental Status Exam, dated 14 September 2021, which reflects significant issues: PTSD and trauma responses, high anxiety, Bipolar I symptom management, including persistent depressive state due to medication side effects, anger management difficulties, and difficulties with day-to-day functioning due to co-occurrence of physical and medical conditions. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; DD Form 214; self-authored statement; Veteran Statement; Diagnostic Assessment, two ARBA letters. 6. POST SERVICE ACCOMPLISHMENTS: The applicant goes to therapy once a week, is on the correct medications for residual symptoms of PTSD and is able to go day by day finding a sense of peace and hope in life again. 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), dated 25 September 2019, 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. (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. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (other). 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-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 record of service, the issues and documents submitted with the application were carefully reviewed. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends suffering from PTSD, anxiety, personality disorder, panic attacks, homicidal and suicidal thoughts after a deployment to Iraq which caused the applicant to self- medicate with drugs and alcohol. The applicant provided a copy of Adult, Child and Family Services, LLC, Diagnostic Assessment, dated 15 September 2020, which reflects the applicant was being treated for PTSD and trauma response, anger management and Bipolar I symptom and prescribed medication. The applicant provided a copy of Mental Status Exam, dated 14 September 2021, which reflects significant issues: PTSD and trauma responses, high anxiety, Bipolar I symptom management, including persistent depressive state due to medication side effects, anger management difficulties, and difficulties with day-to-day functioning due to co-occurrence of physical and medical conditions. The applicant contends the applicant should have been treated for mental health issues and given a disability discharge. 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. There is no evidence in the Army Military Human Resource Record (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 applicant contends an upgrade would allow the applicant to pursue care and treatment for combat-related illness. 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. The applicant contends going to therapy once a week post discharge, is on the correct medications for residual symptoms of PTSD and is able to go day by day finding a sense of peace and hope in life again. 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 the following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: The applicant self-asserts PTSD, Bipolar I Disorder with Psychotic Features, and Generalized Anxiety Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant self-asserts PTSD at the time of military service. Post- service, the applicant has been diagnosed with PTSD, Bipolar I Disorder with Psychotic Features, and Generalized Anxiety Disorder by a civilian provider. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant self- asserts PTSD at the time of military service and provided post-service civilian medical documentation supporting the assertion of combat-related PTSD, which mitigates the misconduct that led to discharge. Given the nexus between PTSD, avoidance, difficulty with authority, and self-medicating with substances, applicant's PTSD mitigates the FTRs, disobeying a lawful order, and drug use. Post-service, applicant has been diagnosed with Bipolar I Disorder with Psychotic Features and Generalized Anxiety Disorder, but there is no evidence that either of these conditions existed during military service. (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 PTSD outweighed the basis for separation - AWOL, FTRs, disobeying a lawful order, and drug use - for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered this contention but ultimately did not address it during deliberations due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's misconduct of AWOL, FTRs, disobeying an order, marijuana use, and methamphetamine use. (2) The applicant contends suffering from PTSD, anxiety, personality disorder, panic attacks, homicidal and suicidal thoughts after a deployment to Iraq which caused the applicant to self-medicate with drugs and alcohol. The Board found validity in this contention and determined to upgrade the discharge based on the applicant's PTSD outweighing the applicant's misconduct of AWOL, FTRs, disobeying an order, marijuana use, and methamphetamine use. (3) The applicant contends the applicant should have been treated for mental health issues and given a disability discharge. The Board determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. (4) The applicant contends an upgrade would allow the applicant to pursue care and treatment for combat-related illness. 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. (5) The applicant contends going to therapy once a week post discharge, is on the correct medications for residual symptoms of PTSD and can go day by day finding a sense of peace and hope in life again. The Board considered this contention but ultimately did not address it during deliberations due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's basis for separation. c. The Board determined that the discharge is inequitable based on the applicant's PTSD outweighing the basis for separation - AWOL, FTRs, disobeying a lawful order, and drug use. Thus, relief is warranted. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable based on the applicant's PTSD outweighing the basis for separation - AWOL, FTRs, disobeying a lawful order, and drug use. 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 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: 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 AR20210002417 1