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: 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, being punished as a regular Soldier, but PTSD was the reason the applicant was placed in the situation. The applicant believes it was unjust. During the 2007 deployment to Iraq, the applicant claims that applicant was injured, and it affected the applicant's brain. The applicant claims that applicant was transferred to the rear to the Walter Reed Medical Center and was diagnosed with PTSD. The applicant claims that applicant was treated, receiving medicine for night terrors to prevent the applicant from losing temper, and therapy involving the family and the children. The applicant claims that applicant's situation was not good, but the applicant was reassigned to Fort Benning, to continue therapy. During the transition, the applicant claims that applicant's spouse left the applicant with two children and a baby. While at Fort Benning, the applicant claims that applicant was appointed to train Soldiers at the Master Gunner school. The applicant claims that unit provided the applicant with the opportunity to care for the children until one day the applicant and an E-6 had a verbal altercation. The applicant claims that E-6 placed hands on the applicant and the applicant immediately informed the applicant's noncommissioned officer (NCO). The applicant claims that applicant's NCO told the applicant to go home and stay inside. The applicant claims that applicant was home and came out to the steps. The applicant claims that applicant's NCO was on the phone when the E- 6 returned and attacked the applicant. The applicant claims that applicant reacted in self- defense because of the PTSD, but overreacted. The applicant claims that applicant was arrested as well as the E-6. The applicant claims that applicant was alone because the applicant was lower enlisted and new to the unit. The applicant claims that applicant appeared before a special board, but was not allowed to have a JAG officer present. The applicant claims that a JAG officer could provide instructions to the applicant but could not be present during questioning. The applicant claims that applicant proved the attack took place, but the Major did not follow the UCMJ. The applicant claims that the E-6 was not punished and they focused on the applicant without discussing the PTSD. The applicant claims that this was the first time the applicant was in any trouble while in the Army. The applicant claims that applicant was a great Soldier and could not control the actions due to PTSD. The applicant requests assistance to be able to function normally for the sake of the family. The applicant claims that applicant has been distant and afraid to interact and has been coping with PTSD for years. The applicant claims that treatment for PTSD is costly, the applicant desires to receive treatment from the VA. The applicant claims that applicant is currently homeless, staying in the applicant's vehicle or on the street. The applicant claims that applicant is unable to stay with many people because the applicant wakes up not knowing where the applicant is located. In a records review conducted on 2 June 2022, and by a 3 - 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's PTSD and TBI outweighing the partially mitigated assault that was the basis for applicant's separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. 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-3 / General (Under Honorable Conditions) b. Date of Discharge: 18 March 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 5 February 2009 (2) Basis for Separation: The applicant was informed of the following reasons: For commission of a serious offense, aggravated assault upon Staff Sergeant (SSG) M.L. by pointing at SSG M.L. with a dangerous weapon, to wit: a loaded handgun. (3) Recommended Characterization: Under Other Than Honorable Conditions On 29 January 2009, the applicant was originally notified by the immediate commander, and the commander recommended general (under honorable conditions) discharge. On 5 February 2009, the applicant was re-notified by the battalion commander, and the commander recommended under other than honorable conditions discharge. (4) Legal Consultation Date: 3 March 2009 (5) Administrative Separation Board: On 3 March 2009, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 10 March 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 April 2005 / 3 years, 16 weeks The DD Form 214 reflects the applicant completed first full term of service. The AMHRR is void of any enlistment contract retaining the applicant on active duty after the initial/most recent enlistment period. b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 11 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (18 September 2004 - 23 September 2004; 18 October 2006 - 20 November 2007) f. Awards and Decorations: ARCOM, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Record of Trial by Summary Court-Martial, reflects on 17 February 2009, the applicant was found guilty of the following: The Charge in violation of Article 128, UCMJ: The Specification: Commit an assault upon SSG L. by pointing at SSG L. with a dangerous weapon (hand gun) likely to produce death or grievous hard, to wit: a loaded firearm. Plea: Not Guilty. The sentenced adjudged: Reduction to E-1; forfeiture $999 pay; and, confinement for 30 days. On 17 February 2009, the convening authority took action in the case approving only so much of the sentence as provides for reduction to E-1; forfeiture $933 pay; and, confinement for 28 days. The convening authority stated the reduction to E-1 and forfeiture would remain unless changed by written matters on 25 February 2009. Memorandum, subject: Summary Court-Martial (SCM) Clemency Submission [Applicant], dated 23 February 2009, reflects the defense counsel requests the summary court-martial findings and sentence be set aside or in the alternative the convening authority enters a finding of not guilty with respect to the charge, or reduce the adjudged term of confinement from 30 days to 15 days and only give the applicant a reduction of one rank, from E-4 to E-3. The defense counsel details why clemency is appropriate, basing the request on violations of Rules for Courts-Martial. Memorandum for Record, dated 27 February 2009, reflects the applicant agreed to accept an administrative separation with an under other than honorable conditions in exchange for being released from post-trial confinement and having the forfeitures adjudged in the summary court- martial disapproved by the convening authority. The convening authority signed a second Action to the summary court-martial proceedings on 27 February 2009; only so much of the sentence as provided for confinement for 14 days was approved in ordered executed. The convening authority commented, "[T]he agreement between the government and PVT Garcia is: reduction to E1 remains and is effective immediately. Confinement of 28 days is reduced to 14 days. No forfeiture of pay!" i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Chronological Record of Medical Care, dated 28 January 2009, reflects the applicant underwent a mental health screening, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible, could understand the difference between right and wrong, and could participate in the proceedings. Report of Medical History, dated 30 January 2009, reflects the examining medical physician noted in the comments section: Headaches, Anxiety, and Insomnia (certain language illegible). Chronological Record of Medical Care, dated 2 February 2009, reflects the applicant was diagnosed with Depression, Adjustment Disorder with Depressed Mood, Insomnia, and Headaches. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; Privacy Release Form, with self-authored statement. 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. (7) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. 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-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. The applicant contends PTSD affected behavior, which led to the discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The record reflects in the Chronological Record of Medical Care diagnoses: Depression, Adjustment Disorder with Depressed Mood, Headaches, and Insomnia. The AMHRR shows the applicant underwent a mental health screening on 28 January 2009, shown in the Chronological Record of Medical Care, which reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible, could understand the difference between right and wrong, and could participate in the proceedings. The mental health screening did not indicate any diagnosis. The mental health screening and the record of medical care were considered by the separation authority. The ARBA sent a letter to the applicant at the address in the application on 1 August 2018, requesting documentation to support a PTSD diagnosis but received no response from the applicant. The applicant contends, although both the applicant and the E-6 were arrested, the E-6 was not punished. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the particular case. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade would allow VA medical benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 current homelessness and the need for help. Eligibility for housing support program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential 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. Applicant was diagnosed in service with Major Depression and is diagnosed and service connected by the VA with Anxiety Disorder. The VA medical record also notes severe combat-related PTSD symptoms and history of TBI from an injury sustained in 2006, all of which may mitigate the basis for applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor opined the applicant was diagnosed in service with Major Depression and is diagnosed and service connected by the VA with Anxiety Disorder. Service connection establishes that applicant's Anxiety Disorder also existed during military service. The VA medical record also notes severe combat-related PTSD symptoms and history of TBI from an injury sustained in 2006. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor opined that applicant's PTSD and TBI partially mitigated the incident of assault that led to applicant's discharge. Given the nexus between TBI and impulse control, applicant's TBI likely led to an exaggerated response to being physically threatened given the other person involved also presented with a weapon, applicant's combat- related PTSD also likely contributed to an exaggerated response in the context of this threat. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB concurred with the Board's Medical Advisor's opine, and voted that the applicant's PTSD, TBI and OBH outweighed the partially mitigated assault. b. Response to Contention(s): (1) The applicant contends PTSD affected behavior, which led to the discharge. The Board liberally considered this contention and voted to upgrade the characterization of service due to PTSD and TBI outweighing the partially mitigated assault that was the basis for applicant's separation. (2) The applicant contends, although both the applicant and the E-6 were arrested, the E-6 was not punished. 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 and TBI outweighing the applicant's partially mitigated assault that was the basis for separation. (3) 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 but did not rely on this contention to vote to upgrade the applicant's discharge. (4) The applicant contends being homeless. The Board considered this contention but did not rely on this contention to vote to upgrade the applicant's discharge. (5) The applicant contends an upgrade would allow VA medical benefits and need help. 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 the characterization of service was inequitable based on the applicant's PTSD and TBI outweighing the partially mitigated assault that was the basis for applicant's separation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the discharge was inequitable due to the applicant's PTSD and TBI outweighing the partially mitigated assault that was the basis for applicant's separation. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code and 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: Yes b. Change Characterization to: Honorable 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 AR20210002914 1