1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: 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, through counsel, an upgrade to honorable. The applicant seeks relief contending, in effect, applicant fought on the front lines of the Iraq war as an Infantryman in Mosul, Iraq, and was an excellent Soldier until applicant's PTSD and depression symptoms became too severe for applicant to cope with alone. The applicant sought assistance from leadership and the on-base Chaplain, but applicant was either dismissed or turned away. The applicant believes, in retaliation, applicant's supervisor, Sergeant T., ransacked and trashed applicant's room. The applicant went AWOL due to applicant's PTSD symptoms of daily auditory and visual flashbacks of applicant's battles with Iraqi insurgents and a severe panic attack. In the applicant's mind, Iraqi Soldiers were trying to kill applicant and the flashbacks would not stop. Per the 2017 Kurta Memorandum, Clarifying Guidance, the applicant requests the board grant liberal consideration the behavior which led to applicant's discharge was a direct result of PTSD and change the applicant's characterization to honorable and applicant's narrative reason to Secretarial Authority. While in Iraq, the applicant experienced the death of a noncommissioned officer who was a close friend and the applicant developed severe PTSD and depression. The applicant was given time off instead of being allowed to see a mental health professionals and was forced to continue to work. After being denied medical and spiritual help, the applicant left the base and went to applicant's pre-military home where applicant believed applicant was safe and able to cope with applicant's PTSD symptoms. The applicant's mother and friends helped applicant develop skills to combat applicant's PTSD. As soon as the applicant was better, applicant turned them self into the police. The applicant was prosecuted by military authorities and as part of the plea bargain, applicant received an other than honorable conditions discharge. The prosecutors did not take into account the applicant's mitigating circumstances of PTSD and depression symptoms, resulting in the discharge being improper and inequitable. The applicant's discharge should be upgraded on the basis of equity, in light of applicant's PTSD and depression symptoms, which excuses and mitigates applicant's misconduct. The incident which led to applicant's discharge was a minor and an isolated incident. The applicant's symptoms existed during military service and outweigh applicant's misconduct because the misconduct was an attempt to alleviate the severe symptoms. The applicant had a stellar record before suffering from PTSD and depression. The applicant was unable to control the circumstances which led to applicant's PTSD and depression and based on the arguments (citing "Kurta Memo," Case Law, and various articles), the applicant' characterization and narrative reason are inequitable. The applicant now has two stable jobs, is heavily involved in church, volunteers with homeless veterans in the community, and is positioning them self to eventually become a police officer or a teacher. The applicant further details the contentions in an allied self-authored statement provided with the application, adding applicant had been unable to receive treatment because of applicant's inadequate health insurance or finances. In a records review conducted on 9 February 2022, and by a 5-0 vote, the Board determined the discharge is inequitable because applicant's PTSD fully mitigated the AWOL that was the basis for applicant's 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, and a change to the reentry eligibility (RE) code to 3. 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 / General (Under Honorable Conditions) b. Date of Discharge: 15 December 2011 c. Separation Facts: (1) Date Charges Preferred (DD Form 458, Charge Sheet): NIF / Special Court- Martial Order Number 40, dated 20 December 2011, reflects the applicant was charged with: Charge I, in violation of Article 85, UCMJ: The Specification: From 22 February 2011 to 22 May 2011, without authority and with intent to remain away permanently, absent them self from applicant's unit and did remain so absent in desertion until applicant was apprehended. Plea: None Entered. Finding: Dismissed. Charge II, in violation of Article, 86, UCMJ: The Specification: From 22 May 2011 to 7 September 2011, without authority, absent them self from applicant's unit. Plea: None Entered. Finding: Dismissed. The proceedings were terminated on 10 November 2011. The applicant's request for discharge pursuant to the provisions of AR 635-200, Chapter 10, was approved on 1 December 2011, with the issuance of a discharge under other than honorable conditions. The charges and their specifications were dismissed. All rights, privileges and property of which the accused had been deprived by virtue of the proceedings would be restored. (2) Legal Consultation Date: NIF (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: NIF (5) Separation Decision Date / Characterization: 1 December 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 March 2008 / 4 years, 16 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 3 years, 2 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea, SWA / Iraq (NIF) / The applicant's AMHRR reflects award of an ARCOM for support of Operation Iraqi Freedom from 15 November 2009 to 30 August 2010, however, the service is not reflected on the applicant's DD Form 214. f. Awards and Decorations: GWOTSM, KDSM, ASR, OSR / The applicant's AMHRR reflects award of the ARCOM, however, the award is not reflected on the applicant's DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Deserter/Absentee Wanted by the Armed Forces form, dated 21 March 2011, reflects the applicant went AWOL on 22 February 2011. Report of Return of Absentee form, dated 22 May 2011, reflects the applicant was in Deserter status when applicant was apprehended by civilian authorities in Garden Grove, CA, on 22 May 2011 and returned to military authorities. Deserter/Absentee Wanted by the Armed Forces form, dated 25 May 2011, reflects the applicant went AWOL on 22 May 2011. Report of Return of Absentee form, dated 8 September 2011, reflects the applicant was in Deserter status when applicant surrendered to military authorities at Fort Bliss, TX, on 7 September 2011. Special Court-Martial Order Number 40, dated 20 December 2011, as described in previous paragraph 3c. i. Lost Time / Mode of Return: 197 days: AWOL, 22 February 2011 - 21 May 2011 / Apprehended by Civil Authorities AWOL, 22 May 2011 - 6 September 2011 / Surrendered to Military Authorities j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided C-Health Care Agency, Behavioral Health Services letter, dated 3 December 2018, reflecting the applicant was enrolled in the OC4Vets program on 29 August 2017 and while engaged in the Behavioral Health Services, the applicant was diagnosed with: Unspecified Depressive Disorder with R/O for Major Depressive Disorder and R/O Post-Traumatic Stress Disorder. 5. APPLICANT-PROVIDED EVIDENCE: Counsel's letter; DD Form 293; Legal Brief; self-authored statement; DD Form 214; ARCOM Award Certificate; four Articles regarding PTSD; Office of the Under Secretary of Defense Memorandum, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment ("Kurta Memo"); C-Health Care Agency letter; two third-party statements. 6. POST SERVICE ACCOMPLISHMENTS: Counsel states the applicant has two stable jobs, is heavily involved in church, volunteers with homeless veterans in the community, and is positioning them self to eventually become a police officer or a teacher. 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 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. (5) 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.) (6) 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. (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 "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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a person separated from last period of service with a nonwaivable 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 record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The general (under honorable conditions) discharge received by the applicant was appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS. Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends having suffered from PTSD and depression, which affected applicant's behavior and ultimately led to applicant's discharge. The applicant provided medical documents indicating applicant was diagnosed with: Unspecified Depressive Disorder with R/O for Major Depressive Disorder and R/O Post-Traumatic Stress Disorder. The AMHRR is void of a mental status evaluation. The applicant contends the event which led to applicant's 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 the offense leading to applicant's discharge was minor. The AMHRR indicates the applicant committed discrediting offenses. The applicant contends receiving no assistance from the command with applicant's mental condition. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends being harassed by applicant's supervisor. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant did not present any evidence to show he reported the incident. The applicant contends good service, including a combat tour. The third party statements provided with the application speak highly of the applicant. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade would allow applicant to receive medical 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 having two stable jobs, is heavily involved in church, volunteers with homeless veterans in the community, and is positioning them self to eventually become a police officer or a teacher. 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 DoD and VA medical records and found the applicant was diagnosed with PTSD that could mitigate applicant's AWOL that was the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant is 90% service connected, 70% for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor, after applying liberal consideration, opined that the applicant's PTSD mitigates applicant's AWOL because this type of avoidance is part of the sequela of symptoms associated with PTSD. (4) Does the condition or experience outweigh the discharge? Yes. The Board applied liberal consideration and concurred with the opinion of the Board's Medical Advisor, a voting member, that applicant's PTSD fully mitigated applicant's AWOL, and therefore outweighed the basis for applicant's separation. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs to be changed. The Board determined that this contention was valid and voted to change the narrative reason under Secretarial Authority. (2) The applicant contends having suffered from PTSD and depression, which affected applicant's behavior and ultimately led to applicant's discharge. The Board liberally considered this contention and voted to upgrade the characterization of service due to PTSD fully mitigating the applicant's AWOL that was the basis for separation. (3) The applicant contends the event which led to applicant's 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 PTSD fully mitigating the applicant's AWOL charges. (4) The applicant contends the offense leading to the discharge was minor. 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 fully mitigating the applicant's AWOL charges. (5) The applicant contends receiving no assistance from the command with applicant's mental condition. 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 fully mitigating the applicant's AWOL charges. (6) The applicant contends he was harassed by his supervisor. 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 fully mitigating the applicant's AWOL charges. (7) The applicant contends good service, including a combat tour. The Board determined that this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD fully mitigating the applicant's AWOL charges . (8) The applicant contends an upgrade would allow him to receive medical 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. (9) The applicant contends having two stable jobs, is heavily involved in church, volunteers with homeless veterans in the community, and is positioning them self to eventually become a police officer or a teacher. 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 PTSD fully mitigating the applicant's AWOL charges. c. The Board determined the discharge is inequitable based on the applicant's PTSD fully mitigating applicant's AWOL that was the basis for applicant's 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, and a change to the reentry eligibility (RE) code to 3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD fully mitigated the applicant's AWOL charges as basis for separation, therefore making the current discharge inequitable. (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 Board voted to change the RE code to RE-3. 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: RE-3 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 AR20210003220 3