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, a gross and unjust error occurred during active military service which caused the Department of the Army to give the applicant an unfavorable and unjust discharge. The applicant believes the United States Army did not follow Army regulations concerning a veteran who suffers from a mental disorder which led to misconduct. The applicant believes if referred to Physical Disability Board the applicant would have received a more favorable outcome. Upon returning from Iraq the applicant was diagnosed with chronic PTSD with anxiety and placed on a physical profile. The profile stated: restrict patient from environments in which simulated warfare is being performed due to cues causing worsening anxiety; Eight-hour nocturnal sleep every night and eight-hour workdays not including PT; No access to weapons, artillery, explosives, or firearms. b. Board Type and Decision: In a records review conducted on 30 August 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD and TBI diagnoses outweighing the AWOL and Desertion basis for separation. 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, and the reentry code to RE-3. 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-4 / General (Under Honorable Conditions) b. Date of Discharge: 31 July 2006 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 7 June 2006, the applicant was charged with violating Article 85: On or about 5 May 2005, without authority and with intent to shirk important service, namely deployment to the Joint Readiness Training Center and Iraq (OIF), quit unit, to wit: Company 8, 1st Battalion, 34th Armor, located at Fort Riley, Kansas, and did remain so absent in desertion until on or about 25 April 2006. (2) Legal Consultation Date: 18 July 2006 (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: 25 July 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 January 2003 / 3 years b. Age at Enlistment / Education / GT Score: 17 / GED / 93 c. Highest Grade Achieved / MOS / Total Service: E-4 / 19K10, M1 Armor Crewman / 2 years, 6 months, 28 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (10 September 2003 - 20 September 2004) f. Awards and Decorations: ARCOM, NDSM, ICM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 5 May 2005; From "AWOL" to "Dropped From Rolls (DFR)," effective 5 June 2005; From "Dropped From Rolls (DFR)" to "Present for Duty (PDY)," effective 25 April 2006, and From "Deserter" to "Present for Duty (PDY)," effective 25 April 2006. Checklist for Pretrial Confinement, dated 12 June 2006, the accused has shown this command an indication the applicant is a flight risk. Immediately after UCMJ charges were preferred on the accused for desertion, the applicant went AWOL. The accused stated actions were wrong but did not care. The accused has been AWOL three times. On 3 May 2005, the accused received a Field Grade Article 15 for AWOL, disrespect to a senior noncommissioned officer and failure to repair. Two days after receiving Article 15, the accused deserted for nearly a year. The applicant returned on 25 April 2006, when the accused knew unit was no longer deploying. On 10 June 2006, three days after the applicant was notified that UCMJ action was pending, the applicant went AWOL again. There is probable cause to believe the accused does not care about duties to the Army and will not hesitate to go AWOL again. i. Lost Time / Mode of Return: 355 days (AWOL, 5 May 2005 - 25 April 2006) / Apprehended by Civil Authorities j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Other Behavioral Health Conditions: Physical Profile, dated 15 April 2005, reflects PTSD Chronic. The applicant provided a copy of VA Affairs letter dated 8 December 2017, reflecting the applicant was diagnosed with PTSD. 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 293; self-authored statement; Company Commander recommendation; Physical Profile; Post Deployment Health Assessment; six letters of support; DA Form 2823; VA Letter; VA Form 21-4138; VA appointment letter; Medical Progress Notes. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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) Paragraph 1-34b states Soldiers who do not meet medical fitness standards for retention are referred to a medical evaluation board (MEB). A finding that a Soldier does not meet medical fitness standards for retention requires the awarding of a permanent profile documented on DA Form 3349 (Physical Profile) establishing a permanent "3" or "4" in any physical, upper extremities, lower extremities, hearing, eyes, psychiatric (PULHES) factor in accordance with AR 40 - 501. A Soldier is considered in the DES process as of the date (earliest date where the profile lists multiple referred conditions) the DA Form 3349 is approved by the physician approving authority (second signature) for a condition that fails medical retention standards, or on the disposition date of a Military Occupational Specialty Administrative Retention Review which referred the Soldier to DES in accordance with AR 635 - 40. (2) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (3) 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. (4) 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. (5) 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. (6) 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.) e. AR 635-40 paragraphs 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, their DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial." 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-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of Army Military Human Resource Record (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 general (under honorable conditions) discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with a general (under 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 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. 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. 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 contends being diagnosed with PTSD. The applicant's AMHRR contains documentation of PTSD diagnosis. The applicant provided a Physical Profile, dated 15 April 2005, which reflects PTSD Chronic, and a copy of VA Affairs letter dated 8 December 2017, reflects a diagnosis of PTSD. The Army Military Human Resource Record (AMHRR) is void of a mental status evaluation. The applicant contends a gross and unjust error occurred during active military service which caused the Army to give the applicant an unfavorable and unjust discharge. The applicant believes the United States Army did not follow Army regulations concerning a veteran who suffers from a mental disorder which led to misconduct. The applicant believes if referred to a Physical Disability Board the applicant would have received a more favorable outcome. AR 635- 40 paragraphs 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, their DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial." The third-party statements provided with the application speak highly of the applicant. They all recognize the applicant's behavior after leaving the Army. The applicant contends block 23 and 26 of DD Form 214 should reflect Medical Separation and Permanent Disability. The applicant's requested change to the DD Form 214 do not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization 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: TBI and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's TBI and PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. It is the opinion of the Board's Medical Advisor that the applicant has two BH conditions, TBI and PTSD, which mitigate the applicant's misconduct. As there is an association between TBI/PTSD and avoidant behaviors, there is a nexus between the applicant's combat-related diagnoses of TBI/PTSD and the offenses of AWOL and desertion. (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 PTSD and TBI outweighed the AWOL and Desertion basis for separation for the aforementioned reasons. b. Response to Contention(s): (1) The applicant contends the narrative reason/SPD code for the discharge needs changed. The Board considered this contention and voted to upgrade the applicant's narrative reason for discharge to Misconduct (Minor Infractions) with a corresponding SPD code of JKN due to the applicant's PTSD and TBI outweighing the basis of separation. (2) The applicant contends being diagnosed with PTSD, which influenced behavior leading to the discharge. 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 considered this contention valid and determined that due to the nexus between the applicant's PTSD/TBI and avoidant behavior, the applicant's misconduct is outweighed thus warranting an upgrade. (3) The applicant contends a gross and unjust error occurred during active military service which caused the Department of the Army to give the applicant an unfavorable and unjust discharge. Specifically, the applicant believes the United States Army did not follow Army regulations concerning a veteran who suffers from a mental disorder which lead to misconduct and if referred to a Physical Disability Board the applicant would have received a more favorable outcome. The Board considered this contention and determined that the applicant was not referred to the Physical Disability Board because the applicant had temporary S-3 (psychiatric) profile which renders the applicant ineligible for referral to the Integrated Disability Evaluation System in accordance with AR 635-40, paragraph 1-34b. However, the Board did vote to upgrade the applicant's discharge based on the applicant's PTSD and TBI outweighing the misconduct. (4) The applicant contends block 23 and 26 of DD Form 214 should reflect Medical Separation and Permanent Disability. The Board considered this contention but 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. c. The Board determined the discharge is inequitable based on the applicant's PTSD and TBI diagnoses outweighing the AWOL and Desertion basis for separation, thus warranting an upgrade of the applicant's discharge. 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 voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and TBI mitigated, but did not wholly excuse the applicant's misconduct of AWOL and Desertion. 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 to upgrade the RE code to RE-3 because the applicant's BH conditions, though mitigating, are service limiting. 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: 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 AR20210002596 1