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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the discharge was inequitable because it was based on one isolated incident which failed to consider the real issue which occurred before the discharge. The applicant seeks an upgrade to honorable because of the health issues which arose from a traumatic brain injury the applicant sustained at Fort Bliss during advanced individual training. The applicant had symptoms of the injury, such as having a weaker right side of the body and slightly slurred speech. The applicant wants to receive medical attention from the Department of Veterans Affairs Hospital to treat and prevent the injury from escalating in the future. On 8 September 2002, the applicant was injured when the applicant was coming down the stairwell for roll call and the applicant fell and hit the edge of one of the steps. The applicant became unconscious. The applicant was immediately rushed to William Beaumont Army Medical Center where the applicant underwent emergency surgery. The surgery was done by neurosurgeon Dr. T. M. The surgeon opened a hole through the applicant's cranium to reduce the pressure from the nine inch hematoma and sealed the hole with a titanium plate. The applicant awoke from a coma two days later and remained in the hospital for about a month with symptoms from the trauma. The applicant was sent on convalescent leave for two weeks. When the applicant returned, the applicant's case was pending a medical board for review. The applicant was given a medical profile which limited the applicant from regular activities. The applicant remained at the barracks of Delta Company 24/7 for about a year waiting for the completion of the medical board review, but because of the lengthy process; displacement of medical files; issues with medical appointments; Dr. T. M. leaving the Army; pressure from the drill sergeants; and pain and suffering from the injury, the applicant finally broke. The applicant went absent without leave (AWOL) because the applicant wanted to rest and fully heal both physically and mentally. In time, the applicant surrendered at Fort Sill, where the applicant was discharged. Since leaving the military, the applicant has graduated from a four-year university, maintained employment, and has been a good citizen. b. Board Type and Decision: In a records review conducted on 2 August 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on applicant's TBI mitigating the 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 the separation authority to AR 635- 200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. 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 / Under Other Than Honorable Conditions b. Date of Discharge: 17 October 2005 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 14 July 2005, the applicant was charged with The Charge: Violating Article 86, UCMJ, The Specification: The applicant was AWOL from 16 August 2003 to 23 June 2005. (2) Legal Consultation Date: 15 July 2005 (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: 26 September 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 19 June 2002 / 15 weeks or completion of basic and Military Occupational Specialty training b. Age at Enlistment / Education / GT Score: 19 / NIF / NIF c. Highest Grade Achieved / MOS / Total Service: E-2 / None / 1 year, 1 month, 29 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet as described in previous paragraph 3c. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 16 August 2003; From "AWOL" to "Dropped From Rolls (DFR)," effective date 15 September 2003; and From "DFR," to "PDY/Returned to Military Control," effective date 23 June 2005. i. Lost Time / Mode of Return: AWOL for 1 year, 10 months, 8 days (677 days), 16 August 2003 to 23 June 2005. This period is not annotated on the DD Form 214 block 29. / Returned to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided: Chronological Record of Medical Care, dated 21 October 2002, which reflects the applicant was diagnosed with fractured skull, vault, closed with peri-cerebral hemorrhage. The entry made on 5 December 2005 reflects: S/P (status post) Craniotomy for epidural hematoma / medical evaluation board. Physical Profile, dated 29 January 2003, reflects the applicant was placed on a permanent profile for the medical condition: Severe Closed Head Injury; Weakness, Right Side. Medical board proceedings were initiated. Memorandum, dated 5 February 2003, reflects the applicant was undergoing a medical board and the applicant was unable to deploy, expiration term of service, or permanent change of station until the physical evaluation board was competed. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214 (two copies); DD Form 293; Chronological Record of Medical Care; Physical Profile; memorandum regarding pending medical board; medical records; Bachelor of Arts Degree. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends attaining a Bachelor's Degree, maintaining employment, and being a good citizen. 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) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (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.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 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 "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. 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 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends Traumatic Brain Injury affected behavior which led to the discharge. The applicant provided medical documents which reflect the applicant was diagnosed, while in service, with fractured skull, vault, closed with peri-cerebral hemorrhage. The applicant had a craniotomy for epidural hematoma. The AMHRR is void of a mental status evaluation. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The applicant provided medical documents which reflect the applicant was pending a medical evaluation board for Severe Closed Head Injury; Weakness, Right Side. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. 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. The applicant contends attaining a Bachelor's Degree, maintaining employment, and being a good citizen. 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: Post-Concussion Syndrome. (2) Did the condition exist or experience occur during military service? Yes. Diagnosis was made while applicant was in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Medical records indicate that the applicant suffered significant head trauma as a result of a fall in Sep 2002. Radiology report indicates that the applicant required emergent neurosurgery in order to save the applicant's life. Based on the available medical documentation, it is the opinion of the Board's Medical Advisor that the applicant has a mitigating BH condition, TBI, which mitigates the misconduct. As there is an association between TBI and avoidant behaviors, there is a nexus between applicant's diagnosis of TBI and the offense of being absent without leave. (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 TBI outweighed the AWOL basis for separation. b. Response to Contention(s): (1) The applicant contends Traumatic Brain Injury affected behavior which led 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 determined that the applicant's TBI was a mitigating factor in the applicant's decision to go AWOL and relief was warranted. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. 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 TBI fully outweighing the applicant's AWOL basis for separation. (3) The applicant contends a medical evaluation board was under process at the time of the separation proceedings. The Board found evidence of a lengthy MEB in process prior to the applicant's decision to go AWOL. The MEB process was put on hold and ultimately overridden by the requested Chapter 10 when the applicant returned from AWOL status. The applicant's decision to go AWOL instead of waiting for MEB process to be completed took that option away from the discharging authority. However, the Board found the applicant's TBI to be mitigating for being absent without leave, thus relief was warranted. (4) 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. (5) The applicant contends attaining a Bachelor's Degree, maintaining employment, and being a good citizen. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. In this case, the Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's TBI mitigating the applicant's AWOL basis for separation. c. The Board determined the discharge is inequitable based on applicant's TBI mitigating the basis for separation. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's TBI mitigated the applicant's misconduct of AWOL. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will not change, as the mitigating condition is also service-limiting. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 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 AR20210002745 1