1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 29 April 2021 c. Counsel: 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 was diagnosed with post-traumatic stress disorder (PTSD) while in Iraq in October 2003. The applicant self-medicated with alcohol and the applicant's judgment was flawed being a 22 year old combat veteran who sought help for mental health issues. The applicant was discharged for misconduct instead of being treated for the PTSD. The Department of Veterans Affairs (VA) rated the applicant 70 percent disability for PTSD and the applicant can take time off from work to seek the help the applicant needs. The applicant has stopped drinking and has abstained from alcohol for over five years, which the Board should consider in their decision to upgrade the applicant's discharge to honorable. b. Board Type and Decision: In a records review conducted on 26 August 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD diagnosis outweighing the applicant's basis of 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. 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 / AR 635-200, Paragraph 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 27 January 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 January 2005 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant violated a lawful general regulation under Article 92, UCMJ. The applicant, on two occasions, physically controlled a vehicle while drunk under Article 111, UCMJ. The applicant was found drunk while on duty in a hostile area under Article 112, UCMJ. The applicant was drunk and disorderly under Article 134, UCMJ. The applicant through wrongful overindulgence in intoxicating liquor, incapacitated for proper performance of duties under Article 134, UCMJ. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 6 January 2005 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 January 2005 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 January 2003 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 122 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B10, Combat Engineer / 2 years, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq-Kuwait (20 June 2003 - 19 March 2004) f. Awards and Decorations: NDSM, GWOTEM, GWOTSM, ASR, OSB, VUA g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Record of Trial by Summary Court-Martial, dated 11 December 2003, reflects the applicant was charged with: One specification in violation of Article 92, UCMJ: Violated a lawful general order on 25 September 2003. Plea: Guilty. Finding: Guilty. One specification in violation of Article 112, UCMJ: Found drunk while on duty in a hostile area on 26 September 2003. Plea: Not Guilty. Finding: Guilty. Two specifications in violation of Article 134, UCMJ: Drunk and disorderly on 26 September 2003 and Wrongful overindulgence in intoxicating liquor, incapacitated for proper performance of duty on 27 September 2003. Plea: Guilty. Finding: Guilty. The sentence adjudged: Reduction to E-1; forfeiture $1,054 pay per month for one month. FG Article 15, dated 19 August 2004, for physically controlling a vehicle, to wit: a passenger car while drunk (26 July 2004). The punishment consisted of a reduction to E-2; forfeiture of $668 pay (suspended); and extra duty and restriction for 45 days. Patient Intake/Screening Record (PIR), dated 3 August 2004, reflects the applicant was enrolled in the Army Substance Abuse Program (ASAP) for alcohol abuse. Patient Progress Report (PPR), dated 6 October 2004, reflects the applicant successfully completed ASAP. Military Police Report (Blotter Report), dated 23 October 2004, reflects the applicant was arrested because the applicant drove the vehicle while under the influence of alcohol; drove with excessive alcohol content; drove while under restraint; and drove wrong way on a one-way street (26 July 2004). A police officer observed the applicant's vehicle traveling the wrong way down a one-way street. A traffic stop was initiated and upon contact with the driver, a strong odor of an alcoholic beverage was detected emitting from the applicant's breath. The applicant was apprehended and submitted to a breath test, resulting in a breath alcohol content of .198 percent. The applicant had a previous offense of driving under the influence. Developmental Counseling Form, dated 29 October 2004, for driving under the influence of alcohol. Report of Mental Status Evaluation, dated 4 November 2004, 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. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided Chronological Record of Medical Care, dated 3 October 2003, reflects the applicant was seen by medical personnel because of problems staying asleep because of combat stress. On 30 September 2004, the applicant was diagnosed with deployment related issues, combat stress reaction. The applicant was prescribed medication. Report of Medical History, dated 23 November 2004, the examining medical physician noted in the comments section: Combat related PTSD. The applicant provided Review of Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire, dated 19 November 2015, which reflects the applicant was diagnosed with mild Traumatic Brain Injury (TBI). The applicant provided VA Rating Decision, dated 21 November 2015, which reflects the applicant was rated 70 percent service-connected disability for PTSD. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; Two; DD Forms 293; military service medical records; VA Rating Decision; Review of PTSD Disability Benefits Questionnaire; Kurta Memo. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends abstaining from alcohol for over five years. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3, prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is 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. Based on the Army Military Human Resource Record (AMHRR) , someone in the discharge process erroneously entered on the applicant's DD Form 214, block 28, Narrative Reason for Separation as "Misconduct." The discharge packet confirms the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12b. Soldiers processed for misconduct under these provisions will be assigned a Narrative Reason for Separation as Pattern of Misconduct. The applicant contends PTSD affected behavior which led to the discharge and the VA rated the applicant 70 percent disability for PTSD. The record shows the applicant underwent a mental status evaluation on 4 November 2004, which indicates 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 did not indicate a diagnosis. The applicant underwent a medical examination on 23 November 2004, the examining medical physician noted in the comments section: Combat related PTSD. The MSE and medical examination were considered by the separation authority. The applicant provided medical documents which reflect the applicant was diagnosed with PTSD, a history of mild TBI, and combat stress, and the VA rated the applicant 70 percent service-connected disability for PTSD. The applicant contends being discharged for misconduct instead of being treated for the PTSD. The applicant provided medical documents which reflect the applicant was treated for combat stress by medical personnel while on active duty. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends abstaining from alcohol for over five years. 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: PTSD. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that, based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, PTSD. As there is an association between PTSD and use of alcohol to self-medicate symptoms, there is a nexus between the diagnosis and the pattern of alcohol abusing behavior applicant demonstrated Thus, the applicant's basis of separation is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's PTSD outweighed the applicant's basis for separation - violating a lawful regulation, DUI, drunk on duty, drunk and disorderly. b. Response to Contention(s): (1) The applicant contends PTSD affected behavior which led to the discharge and the VA rated the applicant 70 percent disability for PTSD. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board determined that the applicant's PTSD mitigates the applicant's basis of separation, thus the Board decided relief was warranted in the form of an upgrade. (2) The applicant contends being discharged for misconduct instead of being treated for the PTSD. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's basis for separation. (3) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's basis for separation. (4) The applicant contends good service, including a combat tour. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings along with the totality of the applicant's service record. The decision to upgrade was made due to the applicant's PTSD outweighing the basis for separation. (5) The applicant contends abstaining from alcohol for over five years. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD outweighing the applicant's basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD diagnosis outweighing the applicant's basis of separation. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's basis for separation - violating a lawful regulation, DUI, drunk on duty, drunk and disorderly. (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 AR20210002626 1