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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, when the applicant returned home from a 2007 to 2008 deployment in Iraq, the applicant found many unfavorable and undesired circumstances awaiting the applicant. This led the applicant to act in a way the applicant should not have. The applicant had been acting unprofessional in the last weeks of service in the Army which led to such consequences. The applicant accepts responsibility for the substandard discharge. When the applicant returned home from deployment the applicant found the spouse involved with another person and bearing a child. This took the applicant to a mentally distorted and disturbing state of mind. The applicant was alone, having no one who could instill some spirit of tolerance and professionalism in the applicant. In all the years the applicant served, the applicant had been active and dedicated in service, especially during the time the applicant spent in Iraq where along with the infantry unit worked in harsh and hostile conditions to accomplish the mission. The applicant sincerely wishes the decision of the discharge could be changed because the applicant believes overall, the applicant served with loyalty and dedication. The decision should not be taken only based on the actions in the last few weeks of service but on the applicant’s overall performance. The applicant has been a loving parent, played all the roles in the family, and is a responsible citizen without any allegations of breaking laws. The current discharge would have long-term and detrimental consequences. Not only will the applicant be denied praiseworthy jobs, but the applicant fears the children would not know who their parent was. The applicant was denied jobs because of the less-than-honorable discharge, but the applicant knows the applicant would have excelled in those jobs. During the mental distress, the applicant had no one to take care of or give the applicant needed psychological assistance. Nobody from the leadership or colleagues was there to tell the applicant was leading the career and services to devasting results. The leadership and comrades from the 2007 to 2008 deployment were all replaced and moved to new assignments. The applicant could not perform to the utmost ability because of depression and stress, leading to a downfall in performance. b. Board Type and Decision: In a records review conducted on 6 October 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: Misconduct (Minor Infractions) / AR 635-200, Chapter 14-12a / JKN / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 4 June 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 18 May 2010 (2) Basis for Separation: The applicant was informed of the following reasons: On 4 March 2010, the applicant was tried and convicted by Summary Court-Martial for being AWOL from the unit from on or about 31 October 2009 through 8 January 2010, which was terminated by apprehension, being AWOL with the intent to miss field exercise 13 August 2009 through 21 September 2009; and failing to go to the appointed place of duty on divers occasions, missing movement by design and destroying a TA-50. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 19 February and 18 May 2010 (5) Administrative Separation Board: On 19 February 2010, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon initial and continued acceptance by the Convening Authority of the Pretrial Agreement (Offer to Plead Guilty), dated 19 February 2010. On 19 February 2010, the applicant’s Pretrial Agreement (Offer to Plead Guilty) was accepted. On 18 May 2010, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 25 May 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 April 2007 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 105 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 9 months, 8 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (8 November 2007 – 25 October 2008) f. Awards and Decorations: ARCOM, NSM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Five Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Failure to Report” to “Absent Without Leave (AWOL),” effective 13 August 2009; From “AWOL” to “Dropped From Rolls (DFR),” effective 14 September 2009; From “PDY” to “AWOL,” effective 31 October 2009; From “AWOL” to “DFR,” effective 29 November 2009; and From “DFR” to “PDY,” effective 8 January 2010. Military Police Report, dated 8 October 2009, reflects the applicant committed the military offense of Wrongful Damage of Government Property Article 108, UCMJ (On Post) while being AWOL the applicant burned a TA-50 at an unknown location in Oswego, NY. The applicant was advised of rights, which the applicant waived rendering a written statement admitting to the offense. The estimated cost of loss is $2,000. The applicant was further processed and released to the unit. Report of Return of Absentee, dated 8 January 2010, reflects the applicant was apprehended by civil authorities and returned to military control on 7 January 2010. On 8 January 2010, probable cause existed to believe the applicant committed offenses triable by court-martial, and pretrial confinement was necessary because the prisoner would continue to commit serious misconduct, would not appear at trial, and lesser forms of restraints were inadequate. Pretrial Agreement Offer to Plead Guilty, dated 19 February 2010, reflects the applicant, had examined the allegations of misconduct made against the applicant, as well as the underlying evidence. After consulting with defense counsel, and being fully advised, the applicant had a legal and moral right to plead not guilty and to place the burden of proving guilt beyond a reasonable doubt, upon the prosecution, offered to plead guilty of all the charges and specifications. Summary Court-Martial on 4 March 2010, reflects the applicant was found guilty of: Charge I, in violation of Article 86, UCMJ: Specification 1: The applicant did on or about 31 October 2009, without authority, absent oneself from the unit and did remain so absent until the applicant was apprehended on or about 8 January 2010. Plea: Guilty. Finding: Guilty. Specification 2: The applicant did on or about 13 August 2009, without authority and with intent to avoid field exercises, go AWOL from the unit, and did remain so absent until on or about 21 September 2009. Plea: Guilty. Finding: Guilty. Specification 3: The applicant did on diverse occasions between on or about 23 October 2009 and on or about 29 October 2009, without authority, fail to go at the time prescribed to the appointed place of duty. Plea: Guilty. Finding: Guilty. Charge II, in violation of Article 87, UCMJ: The specification, on or about 14 August 2009, the applicant through design missed the movement of D Company, 1st Battalion, 87th Infantry Regiment with which the applicant was required in the course of duty to move. Plea: Guilty. Finding: Guilty. Charge III, in violation of Article 108, UCMJ: The specification, on or about 13 August 2009 and on or about 21 September 2009, without proper authority, destroy by burning personally issued TA-50 equipment of a value of more than $500 military property of the United States, the amount of said damage being in the sum of about $2,000. Plea: Guilty. Finding: Guilty. The sentence consisted of: Reduction to E-1; Confinement for 30 days. Report of Mental Status Evaluation (MSE), dated 22 October 2009, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The MSE does not indicate any diagnosis. i. Lost Time / Mode of Return: 139 days: AWOL, 13 August 2009 – 21 September 2009 / Returned to Military Control AWOL, 31 October 2009 – 8 January 2010 / Apprehended by Civil Authorities CMA, 4 March 2010 – 4 April 2010 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; third-party letter; DD Form 214; DD Form 4; two certificates; enlistment documents; Permanent Order 275-013; separation packet; DA Form 4187; ARBA letter; judgement of divorce. 6. POST SERVICE ACCOMPLISHMENTS: The applicant has been a loving parent, played all the roles in the family, and is a responsible citizen without any allegations of breaking laws. 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 14-12a addresses minor disciplinary infractions, defined as a pattern of misconduct, consisting solely of minor military disciplinary infractions. 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 “JKN” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (minor infractions). 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: 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 contends good service, including a combat tour. The applicant contends family issues affected behavior and ultimately caused the discharge. 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 applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends suffering from mental distress and had no one in the chain of command to turn to during this period. The applicant’s AMHRR contains no documentation of a behavioral health diagnosis. The applicant did not submit any evidence, other than the applicant’s statement, to support the contention the discharge resulted from any medical condition. The AMHRR shows the applicant underwent a mental status evaluation (MSE) on 22 October 2009, which indicates the applicant was mentally responsible and recognized right from wrong. The MSE does not indicate any diagnosis. The MSE was considered by the separation authority. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The third-party statement provided with the application speaks highly of the applicant. It recognizes the applicant’s good conduct while being deployed to Iraq. The applicant has been a loving parent, played all the roles in the family, and is a responsible citizen without any allegations of breaking laws. 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 found that the applicant has the following potentially mitigating diagnoses/experiences: TBI and Adjustment Disorder. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant was diagnosed in service with an Adjustment Disorder and is diagnosed and service connected by the VA for TBI. Service connection establishes that applicant's TBI existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between TBI, impulsivity, and difficulty thinking clearly, there may have been some association between applicant’s TBI and the AWOLs, FTRs, and missing movement. There is also evidence in the medical record that applicant had some deliberate, pre-meditated reasons for going AWOL. Also, there is no natural sequelae between applicant’s BH conditions and destroying a TA-50. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s TBI and Adjustment Disorder outweighed the basis for applicant’s separation – destroying a TA-50 – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends good service, including a combat tour. The Board considered the totality of the applicant’s service record, but determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By destroying TA-50, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant destroying TA-50 is not an acceptable response to dealing with family issues, thus the applicant was properly and equitably discharged. (3) The applicant contends an upgrade of the discharge will allow the applicant to obtain better employment. The Board considered this contention but does not grant relief to gain employment or enhance employment opportunities. (4) The applicant contends suffering from mental distress and had no one in the chain of command to turn to during this period. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with mental distress and chain of command issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant destroying TA-50 is not an acceptable response to dealing with mental distress and chain of command issues, thus the applicant was properly and equitably discharged. (5) The applicant has been a loving parent, played all the roles in the family, and is a responsible citizen without any allegations of breaking laws. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to 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. In this case, the Board considered this contention and determined that the applicant was properly and equitably discharged. d. 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. e. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant’s TBI and Adjustment Disorder did not excuse or mitigate the offenses of destroying TA-50. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and 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 AR20210002496 1