1. Applicant’s Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: Yes 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, the applicant received an upgrade for Department of Veterans Affairs benefits because of post-traumatic stress disorder (PTSD) and Traumatic Brain Injury (TBI) suffered during combat in Iraq. The applicant did not receive the care needed because of poor treatment and the chain of command decisions. The applicant continues to suffer with PTSD and TBI and cannot function properly. The applicant’s mental status at the time of discharge was unstable and affected the applicant’s behavior. b. Board Type and Decision: In a records review conducted on 26 August 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 (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 8 September 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 August 2008 (2) Basis for Separation: Under the provisions of Army Regulation 635-200, Paragraph 14-12b, Pattern of Misconduct, the applicant was informed of the following reasons: On 15 November 2006, the applicant received an Article 15 for marijuana use. Between 17 January and 12 February 2008, the applicant was absent without leave (AWOL) and received an Article 15. On 13 March 2008, the applicant received an Article 15 for offenses of AWOL, failure to report, wrongful use of marijuana, and communicating a threat. On 12 May 2008, the applicant was AWOL and wrongfully appropriated another Soldier’s vehicle. The AWOL was terminated when the applicant was arrested for larceny. The applicant returned and disobeyed orders from a commissioned officer and a noncommissioned officer (NCO). After the applicant received a summary court-martial, the applicant was arrested for disorderly conduct in Watertown on two occasions. The applicant disrespected and assaulted an NCO. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 21 August 2008 (5) Administrative Separation Board: On 21 August 2008, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 2 September 2008 / Under Other Than Honorable Conditions / On 2 September 2008, the separation authority approved the applicant’s separation under the provisions of AR 635-200, Chapter 14-12c, Misconduct (Serious Offense). 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 January 2006 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 6 months, 9 days / The DD Form 214 reflects the applicant entered active duty on 26 February 2008, with total service of 2 years, 5 months, 13 days, but the applicant’s Enlistment Contract reflects the applicant entered active duty on 31 January 2006. d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (16 August 2006 – 27 October 2007) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ASR, CIB, ICM-BSS g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 18 November 2006, for wrongfully using marijuana (between 1 July and 1 August 2006). The punishment consisted of a reduction to E-1; forfeiture of $636 pay per month for two months; and an oral reprimand. FG Article 15, dated 13 March 2008, for: The applicant was AWOL (from 17 January to 12 February 2008). The applicant did, on divers occasions, fail to go at the time prescribed to the appointed place of duty (between 1 and 28 November 2007; 15 January 2008). The applicant did wrongfully use marijuana (between 5 November and 4 December 2007). The applicant did wrongfully communicate to Private H. a threat, to wit: “Your NCO is lucky [the NCO] did not take me, or I would have beat [the NCO’s] ass,” and “Your NCO better not send anyone to come and get me, or I will get pissed off and beat your NCO’s ass.” The punishment consisted of a reduction to E-1; forfeiture of $673 pay; extra duty and restriction for 14 days (suspended); and an oral reprimand. Record of Trial by Summary Court-Martial, dated 7 July 2008, reflects the applicant was charged with: One specification of violation of Article 86, UCMJ: Being AWOL from 12 May to 19 May 2008, until apprehended. Plea: Not Guilty. Finding: Guilty. One specification of violation of Article 90, UCMJ: On 19 May 2009, Willfully disobey a lawful command from Captain M. D., a superior commissioned officer, to submit to a urinalysis test. Plea: Not Guilty. Finding: Not Guilty. Two specifications of violation of Article 91, UCMJ: On 19 May 2008, willfully disobey a lawful order from Staff Sergeant B., a noncommissioned, to shave and get into duty uniform and a lawful order from First Sergeant R. H., a noncommissioned officer, to get into the appropriate uniform. Plea: Not Guilty. Finding: Guilty. One specification in violation of Article 121, UCMJ: On 12 May 2008, wrongfully appropriate a motor vehicle, the property of Private J. Plea: Not Guilty. Finding: Guilty. The sentenced adjudged: To be confined for 30 days and forfeiture $898 pay per month for one month. Five Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: 30 days (CMA, 7 July 2008 – 6 August 2008) / Released from Confinement. AWOL for 27 days, 17 January 2008 to 12 February 2008. This period is deemed not chargeable under Title 10 U.S. Code, section 972, on the DD Form 214. AWOL for 8 days, 12 May 2008 to 19 May 2008. This period is not annotated on the DD Form 214. j. Diagnosed PTSD / TBI / Behavioral Health: Report of Medical History, dated 21 March 2008, the examining medical physician noted in the comments section: Behavioral Health Disorder. Report of Medical Examination, dated 21 March 2008, the examining medical physician noted in the summary of defects and diagnoses section: Behavioral Health Disorder; Substance Disorder. Report of Mental Status Evaluation, dated 17 July 2008, reflects the applicant was cleared for any administrative or judicial actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The applicant was diagnosed with: PTSD, chronic; TBI, mild, not meeting criteria, at this time, for separation under medical evaluation board / military occupational specialty medical retention board. The PTSD was treatable, and treatment would be offered while the applicant was in the Army. Permanent Physical Profile, dated 17 July 2008, reflects the applicant had S2 for Anxiety and Traumatic Brain Injury. The form further states no alcoholic beverages; psychiatric services required; diagnosis: Axis I, Post-Traumatic Stress Disorder, chronic and Traumatic Brain Injury (mild) (not meeting criteria now for separation under MEB proceedings). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; Physical Profile; Enlisted Record Brief; Servicemembers’ Group Life Insurance Election and Certificate; Record of Emergency Data; separation documents. 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) 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 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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-4 applies to a 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 applicant contends PTSD and TBI affected behavior, which ultimately led to the discharge. The applicant’s AMHRR contains documentation which supports a diagnosis of in-service PTSD, chronic and mild TBI. The record shows the applicant underwent a mental status evaluation (MSE) on 17 July 2008, which indicates the applicant was cleared for any administrative or judicial actions deemed appropriate by the command. The applicant could understand the difference between right and wrong and could participate in the proceedings. The MSE was considered by the separation authority. The applicant contends not receiving the proper treatment and being treated unfairly by the chain of command. Regarding the applicant’s medical treatment, the AMHRR is void of the applicant’s complete medical record. Regarding the applicant being unfairly treated by the chain of command, there is no evidence in the AMHRR the applicant sought assistance or reported the unfair treatment. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends an upgrade of the discharge would allow veterans benefits. 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. 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: PTSD, TBI, Adjustment Disorder, and Anxiety. (2) Did the condition exist or experience occur during military service? Yes. The Board’s Medical Advisor found that the applicant’s PTSD, TBI, Adjustment Disorder, and Anxiety existed during the applicant’s 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 the applicant’s PTSD mitigates the applicant’s offenses of marijuana use, FTR, disrespect, and disorderly conduct given the nexus between the applicant’s diagnoses of PTSD and avoidance, difficulty with authority, self-medicating with substances, and anger. Given the nexus between TBI, behavior changes, and agitation, the Board Medical Advisor opined that applicant’s TBI may have also contributed to the disrespect and disorderly conduct. However, the applicant’s communicating a threat, larceny and assault offenses are not mitigated as there is no natural sequelae between any of applicant’s behavioral health conditions and the applicant’s offenses of larceny and assault. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that, while the applicant’s PTSD/TBI mitigated the applicant’s offenses of use of marijuana, AWOL, FTR, disrespect, and disorderly conduct, the applicant’s PTSD/TBI do not outweigh the medically unmitigated offenses of communicating a threat, larceny and assault. b. Response to Contention(s): (1) The applicant contends PTSD and TBI affected behavior led to the applicant’s discharge. The Board liberally considered this contention and determined that, although the applicant’s PTSD/TBI mitigated the applicant’s offenses of use of marijuana, AWOL, FTR, disrespect, and disorderly conduct, the applicant’s PTSD/TBI do not outweigh the severity of the remaining medically unmitigated offenses of communicating a threat, larceny and assault. (2) The applicant contends not receiving the proper treatment and being treated unfairly by the chain of command. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with behavioral conditions, and there is insufficient evidence in the official records or provided by the applicant that such assistance was pursued. The Board concluded that the applicant’s medically unmitigated offenses of communicating a threat, larceny and assault is not an acceptable response to dealing with PTSD and TBI, thus the applicant was properly and equitably discharged. (3) The applicant contends an upgrade of the discharge would allow veterans benefits. 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. c. 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. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, after applying liberal consideration to all the evidence and determining that, while the applicant’s PTSD/TBI mitigated the applicant’s offenses of use of marijuana, AWOL, FTR, disrespect, and disorderly conduct, the applicant’s PTSD/TBI did not outweigh the medically unmitigated offenses of communicating a threat, larceny, and assault. The Board also considered the applicant’s contention that the applicant was not afforded proper treatment and that the Command treated the applicant unfairly but determined that there was insufficient evidence provided by the applicant or contained in the applicant’s official record to warrant a discharge upgrade. 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. Therefore, the applicant’s General Discharge was proper and equitable as the applicant’s misconduct involving larceny and assault fell below that level of meritorious service warranted for an upgrade to Honorable Discharge. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, as 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 AR20210002608 1