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, through counsel, requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant comes from a patriotic family and the military stories were heard throughout the applicant’s childhood. The applicant was anxious to join the Army at age 17, but the applicant’s mother would not sign the papers. The applicant’s service during Operation Iraqi Freedom was meritorious, receiving the Army Commendation Medal (ARCOM) for outstanding dedication to duty during combat operations in Iraq, contributing to the overwhelming success of the commander’s mission. On 1 November 2006, the applicant demonstrated bravery by engaging the enemy during a 37 minute ambush, allowing all forces to fight through the attack. The applicant was awarded a second ARCOM for exceptionally valorous achievement, which testifies to the applicant’s commendable service as a combat veteran. The applicant was assigned route clearance and explosive ordinance disposal as a Gunner. The applicant risked life for buddies, the country, and freedom. The applicant, while on R & R (Rest and Recuperation), was involved in an altercation and received a civilian charge of assault, a felony, which led to the less than honorable discharge. The prosecutor stated although the applicant did not start the fight, according to witnesses, the applicant carried self-defense too far. The applicant served a few months at the Hutchinson Kansas Correctional Center. While at the correctional center medical facility, the applicant was diagnosed with anxiety symptoms of Post-Traumatic Stress Disorder and personality change because of Traumatic Brain Disorder, aggressive type. The documentation from the facility and Corizon's Mental Health details the applicant’s symptoms of PTSD and diagnosis of Traumatic Brain Injury, aggressive form, which the applicant was suffering with while on R & R, without a transitional process to civilian life. The applicant was faithful to the Army’s Values. The applicant’s allegiance and respect for the Army has been proven. The applicant desires to move forward and could benefit from receiving medical treatment and other benefits earned for honorable service. The applicant has not received military benefits because of the discharge. The applicant stated the Army was probably not aware of these medical diagnoses, which contributed to the civilian charge. The applicant desires to focus on the future and to move beyond the anguish of war. The applicant has been unable to support the applicant’s child and desires to be the father the child deserves. An upgrade would help the applicant rebuild the applicant’s life. The commendation letters speak of the applicant with high regard. The applicant believes it was an honor to serve the country and continues to be patriotic. The applicant’s supportive family is hopeful the Board will upgrade the discharge because of honorable service. The applicant further details the contentions in two self-authored statements submitted with the application. b. Board Type and Decision: In a records review conducted on 4 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 (Civil Conviction) / AR 635-200, Chapter 14, Sec II / JKB / RE- 3 / General (Under Honorable Conditions) b. Date of Discharge: 25 August 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 April 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was convicted of Aggravated Battery, intentionally causing bodily harm, and was sentenced to 11 months in confinement. The applicant was convicted of Criminal Damage less than $1000 and sentenced to 120 days confinement. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 22 April 2008 (5) Administrative Separation Board: The Army Military Human Resource Record (AMHRR), contains a Notification of Administrative Separation Board, but the document is unsigned by the Recorder and the applicant. On 24 July 2008, the administrative separation board convened and the applicant’s counsel appeared. The defense counsel requested a delay because the applicant’s whereabouts were unknown at the time. The president of the board determined the board would proceed because there were enough attempts to notify the applicant of the time and date the board would convene before the applicant went AWOL. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. On 13 August 2008, the separation authority approved the findings and recommendations of the administrative separation board. (6) Separation Decision Date / Characterization: 13 August 2008 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 February 2006 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 105 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B10, Combat Engineer, 1 year, 7 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (22 September 2006 – 6 June 2007) f. Awards and Decorations: ICM, ARCOM-V-2, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Five Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Confined by Civil Authorities (CCA),” effective date 7 June 2007; From “Confined by Civil Authorities” to “Absent Without Leave (AWOL) – Confined by Civil Authorities,” effective date 1 November 2007; From “Absent Without Leave – Confined by Civil Authorities,” to “Present for Duty,” effective date 1 April 2008; From “Present for Duty” to “Absent Without Leave,” effective date 18 July 2008; and From “Absent Without Leave” to “AWOL – Confined by Civil Authorities,” effective date 8 August 2008. District Court of Johnson County, KS, dated 8 June 2007, reflects the applicant unlawfully, feloniously, and intentionally caused bodily harm to another person in a manner whereby great bodily harm, disfigurement or death could have been inflicted, a severity level seven person felony. The applicant unlawfully, feloniously, willfully, and knowingly obstructed, resisted or opposes a uniformed or properly identified law enforcement officer while the officer was attempting to perform an official duty, in an investigation of a felony, a level 9 non-person felony. The 2006 Kansas Sentencing Guidelines Journal Entry or Judgment, dated 28 October 2007, reflects the applicant was convicted Aggravated Battery on 15 August 2007. On 4 October 2007, the applicant was sentenced 11 months imprisonment, with a term of 24 months of probation and 12 months post-release supervision. A mental health evaluation was ordered as a condition of the probation. The applicant was credited with 70 days jail credit. District Court of Johnson County, KS, Complaint, dated 8 January 2008, reflects the applicant on or about 24 and 25 December 2007, unlawfully and intentionally, by means other than fire or explosive, injure and/or damage and/or mutilate and/or deface and/or substantially impair the use of property, to wit: a window or a wall to the extent of less than $1000, a class B non-person misdemeanor. Johnson County Sheriff Disposition Printout reflects the charge of Obstruction Legal Process Felony was dismissed by the prosecutor. On 18 March 2008, the applicant was found guilty of the charge of Criminal Damage and sentenced to 120 days jail time and probation for one year. Developmental Counseling Form, dated 2 April 2008, for pending separation under AR 635-200, Chapter 14 for Civil Conviction. Memorandum for Record, dated 24 July 2008, reflects the applicant was in AWOL status and all attempts were made to contact the applicant, to include the probationary officer, met with negative results. The applicant was not in custody at the time. i. Lost Time / Mode of Return: 11 months, 3 days (338 days): AWOL/CCA, 7 June 2007 – 31 March 2008 / Released from Confinement AWOL/CCA, 18 July 2008 – 25 August 2008 / Discharged from Service j. Diagnosed PTSD / TBI / Behavioral Health: Correct Care Solutions, Kansas Department of Corrections, Mental Health Psychiatric medical documents, dated between 21 November 2008 and 12 May 2009, reflect the applicant was diagnosed with: Post-Traumatic Stress Disorder; Personality Change because of Traumatic Brain Injury, Aggressive Type. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; two Letters from Master Social Worker; two self-authored statements; two Recommendations for Award; ARCOM certificate; 10 photographs; Correct Care Solutions, Kansas Department of Corrections medical documents; Department of Veterans Affairs Authorization to Disclose Personal Information to a Third Party. 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) Section II, Paragraph 14-5, prescribes conditions which subject a Soldier to discharge and reduction in grade. A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present. This includes similar adjudication in juvenile proceedings: 1) A punitive discharge authorized for the same or a closely related offense under the MCM 2002, as amended; 2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender; Initiation of separation action is not mandatory. Although the conditions established in a (1) or (2), above, are present, the immediate commander must also consider whether the specific circumstances of the offense warrant separation. If the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. 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 “JKB” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, section II, misconduct (civil conviction). 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 a 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 PTSD and TBI affected behavior which led to the discharge. The applicant provided medical documents indicating the applicant was diagnosed by a civilian medical facility, after the applicant’s discharge, with Post-Traumatic Stress Disorder and Personality Change because of Traumatic Brain Injury, Aggressive Type. The Army Military Human Resource Record (AMHRR) is void of a mental status evaluation. The applicant contends the incident which led to his discharge was because of self-defense. The AMHRR contains evidence which reflects the applicant was convicted by civilian court of Aggravated Battery and sentenced to 11 months imprisonment, with a term of 24 months of probation and 12 months post-release supervision. 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 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: there is no available documentation in JLV or AHLTA that a mitigable condition was operative. However, the applicant asserts PTSD in- service and holds a post-service diagnosis of PTSD via treatment while incarcerated in 2008. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found there was no evidence of the presence of a behavioral health condition during his time in service. However, the applicant asserts PTSD in-service and holds a post- service diagnosis of PTSD via treatment while incarcerated in 2008. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that, based on the information in the applicant’s medical record, it is the opinion of the Agency psychologist that there are no mitigating Behavioral Health conditions. Problems arising from PTSD often contribute to high stress, anxiety, poor sleep, nightmares, flashbacks, hypervigilance, excessive anger, threatening (hostile) behavior and self-medication with alcohol/illicit drugs. However, flagrant assault and property damage is not part of the natural history or sequelae of PTSD or any other behavioral health conditions and, as such, is not mitigated under Liberal Consideration. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board concurred with the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s PTSD diagnosis outweighed the basis for applicant’s separation – Aggravated Battery, intentionally causing bodily harm, sentenced to 11 months in confinement, conviction of criminal damage less than $1000 and sentenced to 120 days confinement. b. Response to Contention(s): (1) The applicant contends PTSD and TBI affected behavior which led to the discharge. The Board considered this contention and determined that the applicant’s PTSD and TBI do not excuse or mitigate the applicant’s misconduct of aggravated battery, intentionally causing bodily harm, sentenced to 11 months in confinement, conviction of criminal damage less than $1000 and sentenced to 120 days confinement. Ultimately, the Board determined that applicant was properly and equitably discharged. (2) The applicant contends the incident which led to the discharge was because of self- defense. The Board considered this contention and determined there is insufficient evidence to support the applicant’s claim of self-defense. The applicant was properly and equitably discharged. (3) The applicant contends youth and immaturity affected the applicant’s behavior at the time of the discharge. Due to the seriousness of the misconduct including conscious, deliberate decisions the applicant made when presented with challenges, youthful indiscretion does not excuse the misconduct. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case, the Board determined that the applicant was properly and equitably discharged. (4) 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 Aggravated Battery, intentionally causing bodily harm, sentenced to 11 months in confinement, conviction of criminal damage less than $1000 and sentenced to 120 days confinement, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (5) 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, despite applying liberal consideration of all the evidence before the Board, the applicant’s PTSD did not excuse or mitigate the offenses of Aggravated Battery, intentionally causing bodily harm, sentenced to 11 months in confinement, conviction of criminal damage less than $1000 and sentenced to 120 days confinement. 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, 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 AR20210002701 1