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 under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, applicant is currently being treated for applicant's medical conditions at the VAOPC in Laredo, TX. The applicant's medical conditions originated while applicant was in the service on active duty. The applicant was denied service related benefits due to applicant's character of service, under other than honorable conditions and applicant's narrative reason, misconduct (serious offense). These classifications prevent the applicant from obtaining applicant's service related benefits. The applicant served in Afghanistan from 3 April 2008 to 15 May 2009. One year after the applicant returned from applicant's tour overseas, the mental issues began to really affect applicant's performance and duties in the military. The VA reviewed the applicant's medical condition and approved applicant for treatment and this justifies the applicant had a medical condition while on active duty which contributed to applicant's attitude towards applicant's military performance. The applicant's PTSD became worse while on active duty and applicant was discharged. In a records review conducted on 9 February 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, as compared to the medically unmitigated 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 to the separation authority to AR 635-200, paragraph 14- 12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 17 November 2010 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 October 2010 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant went absent without leave (AWOL) from applicant's unit and was subsequently dropped from the rolls (DFR) on 4 June 2010 and remained absent until 12 July 2010. The incident was a serious offense and had a negative effect upon the unit's readiness. On 2 August 2010 and 21 August 2010, the applicant failed to report to the Staff Duty Officer to perform extra duty as directed by an Article 15 applicant received on 16 July 2010. The applicant failed to report to the unit's 0630 hours accountability formation on 16 August 2010. On 13 August 2010, the applicant was apprehended by Fort Campbell, KY, Military Police and charged with being drunk and disorderly. During this incident, the MPs stated the applicant became disorderly when they told applicant to calm down and applicant's blood alcohol content (BAC) was .137. On diverse occasions, the applicant presented checks: Number 615 for $83.28; Number 616 for 24.29; Number 617 for $53.95; Number 619 for $60.00; and, Number 620 for $60.00 for purchase or cash to the Army and Air Force Exchange Service (AAFES) and failed to maintain sufficient funds in the bank account from which checks were drafted. These actions, combined with serious offenses of being AWOL and DFR, brought discredit upon the applicant's unit and the Armed Forces. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: On 3 September 2010, the applicant waived legal counsel. (5) Administrative Separation Board: On 3 September 2010, the applicant unconditionally waived consideration of the case before an administrative separation board. (6) Separation Decision Date / Characterization: 9 November 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 November 2008 / 6 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 35F10, Intelligence Analyst / 4 years, 3 months, 16 days d. Prior Service / Characterizations: RA, 2 August 2006 - 10 November 2008 / HD e. Overseas Service / Combat Service: SWA / Afghanistan (3 April 2008 - 15 May 2009) f. Awards and Decorations: ACM-CS, ARCOM, AGCM, NDSM, GWOTSM, ASR, OSR, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Command Serious Incident Report (SIR), reflects on 22 March 2010, the applicant was caught smuggling drugs (OxyContin) into Cumberland Rehabilitation Facility. The applicant was investigated by the Hopkinsville detectives with having a known association with drug traffickers. Due to the applicant failing ASAP, applicant was discharged from the facility. Report of Behavioral Health Evaluation, dated 24 March 2010, reflects the applicant underwent the evaluation due to hospital discharge. The applicant was mentally responsible had the mental capacity to understand and participate in the proceedings. The applicant met the retention standards of AR 40-501. The diagnosis was deferred and indicated the applicant needed further examination. Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 5 May 2010; From "Absent Without Leave" to "Dropped From Rolls (DFR)," effective date 4 June 2010; From "Dropped From Rolls," to "Present for Duty," effective date 12 July 2010; From "Present for Duty" to "Confined by Military Authorities (CMA)" effective date 7 October 2010; and, From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective date 24 October 2010. Report of Return of Absentee, dated 8 July 2010, reflects the applicant was apprehended by civil authorities and returned to military control on this date. FG Article 15, dated 16 July 2010, for, without authority, absent them self from applicant's unit (5 May to 12 July 2010). The punishment consisted of a reduction to E-2 and extra duty for 45 days. Report of Behavioral Health Evaluation, dated 3 August 2010, reflects the applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The applicant was screened for PTSD and mild TBI, with negative results. The diagnosis was deferred. The applicant was cleared for any administrative actions deemed appropriate by command. Military Police Report, dated 13 August 2010, reflects the applicant was apprehended for being drunk and disorderly. Investigation revealed while at the military police station, the police were conducting a series of field sobriety tests on another Soldier when the applicant became disorderly. The applicant was apprehended and administered an intoximeter test which resulted in a .137 percent BAC. FG Article 15, dated 30 August 2010, for on three occasions failing to go at the time prescribed to applicant's appointed place of duty (2 August, 16 August, and 21 August 2010); being drunk and disorderly (13 August 2010); and, on six occasions, making and uttering checks for purchase of unspecified merchandise and dishonorably failing to maintain funds in the bank for payment of such checks upon their presentment for payment (4, 5 and 8 April 2010). The punishment consisted of a reduction to E-1 and extra duty and restriction for 30 days. Record of Trial by Summary Court-Martial, reflects on 7 October 2010, the applicant was found guilty of the following charges: Five specifications in violation of Article 86, UCMJ: On 3 September 2010, go from applicant's appointed place of duty. Plea: Guilty. On 4 September 2010, fail to go to applicant's appointed place of duty. Plea: Guilty. On 5 September 2010, fail to go to applicant's appointed place of duty. Plea: Guilty. On 6 September 2010, fail to go to applicant's appointed place of duty. Plea: Guilty. On 7 September 2010, fail to go to applicant's appointed place of duty. Plea: Guilty. One specification in violation of Article 90, UCMJ: On 11 September 2010, willfully disobey a lawful command from Major N.H., applicant's superior commissioned officer, not to consume alcohol. Plea: Guilty. Two specifications in violation of Article 92, UCMJ: On 8 September 2010, violate a lawful general regulation by wrongfully possessing drug paraphernalia. Plea: Guilty. On 8 September 2010, violate a lawful general regulation by wrongfully possessing a prescription drug without it being accompanied by the original container. Plea: Guilty. One specification in violation of Article 134, UCMJ: On 11 September 2010, was disorderly, which conduct was prejudicial to good order and discipline. Plea: Guilty. The sentenced adjudged: Confinement for 30 days. On 20 October 2010, the sentence was approved and ordered executed. Thirteen Developmental Counseling Forms, for various acts of misconduct. i. Lost Time / Mode of Return: AWOL for 68 days (5 May 2010 to 12 July 2010) and CMA for 18 days (7 October 2010 to 24 October 2010). These periods are not annotated on the DD Form 214, block 29. j. Diagnosed PTSD / TBI / Behavioral Health: Memorandum, subject: Synopsis of Treatment for [Applicant], dated 3 May 2010, reflects the applicant was medically referred to ASAP on 24 February 2010 for psychosocial assessment after being discharged from impatient hospitalization for detoxification at the hospital. The ASAP staff along with the applicant's First Sergeant recommended the applicant be referred to attend the Adult Chemical Dependency Program at Cumberland Hall Hospital for a complete rehabilitation treatment. During the last phase of the treatment, the applicant was investigated for obtaining illegal opioids in as a result of the investigation, the applicant was terminated from the program for non-compliance. On 24 March 2010, the applicant was evaluated and gave the impression of Opioid Dependence by the ASAP Clinical Consultant, Dr. A.B. On 22 April 2010, the Rehabilitation Team declared the applicant was a rehabilitation failure. Report of Medical History, dated 18 August 2010, the examining medical physician noted in the comments section: Anxiety, insomnia, depression, suicide, counseling, and evaluation (The examining physician elaborated on each issue). Report of Medical Examination, dated 18 August 2010, the examining medical physician noted in the summary of defect section: current treatment anxiety, depression, history of suicide attempt; and in the recommendations section: Behavioral Health - continue current treatment. The applicant provided VA medical Progress Notes, dated 28 March 2019 and 24 April 2019, reflecting the applicant had a history of PTSD and insomnia; psychiatrist's assessment: PTSD and insomnia. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; 2019 Earnings Statement; VA medical documents; third party 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) 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 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. (6) 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. (7) 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. 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 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 the narrative reason for the discharge needs to be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." 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 applicant contends having suffered from PTSD which affected applicant's behavior and ultimately led to applicant's discharge. The applicant provided VA medical documents reflecting a psychiatrist assessed applicant as having PTSD and insomnia. The AMHRR shows the applicant underwent a behavioral health evaluation (BHE) on 3 August 2010, which reflects the applicant was cleared for any administrative actions deemed appropriate by command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The applicant was screened for PTSD and mild TBI, with negative results. The AMHRR reflect the applicant underwent a medical examination on 18 August 2010 and the examining medical physician noted the applicant was currently receiving treatment for anxiety and depression and had a history of a suicide attempt. The physician recommended the applicant continue current treatment with Behavioral Health. The BHE and the medical examination were considered by the separation authority. The applicant contends good service, including a combat tour. The third party statement provided with the application speak highly of the applicant. The applicant contends an upgrade would allow applicant to obtain service related 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 DoD and VA medical records, applicant's statement, and/or civilian provider documentation and found the applicant was diagnosed with Acute Reaction to Stress, Adjustment Disorder, Anxiety Disorder, and PTSD that could mitigate applicant's basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with Acute Reaction to Stress, Adjustment Disorder, Anxiety Disorder, which existed during military service. The applicant has post-service diagnoses of PTSD and Intermittent Explosive Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, opined that the applicant's PTSD mitigates applicant's AWOL and FTRs because avoidance is part of the sequela of symptoms associated with PTSD. However, applicant's disorderly conduct and writing insufficient funded check on multiple occasions are not mitigated by applicant's PTSD or other behavioral health conditions as there is no nexus between applicant's behavioral health conditions and this misconduct. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor, after applying liberal consideration and found that some of applicant's basis for separation are partially mitigated, but not outweighed by applicant's PTSD and other behavioral health conditions for the reasons listed in (3) above. 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 upgrade the narrative reason due to applicant's length and quality of service, to include combat service, as compared to the medically unmitigated basis for applicant's separation. (2) The applicant contends having suffered from PTSD which affected applicant's behavior and ultimately led to applicant's discharge. The Board, after applying liberal consideration, determined that the applicant's PTSD and other behavioral health conditions mitigated applicant's AWOL and FTRs, but not the disorderly conduct and writing insufficient funded check on multiple occasions that the Board determined were minor infractions, and therefore voted to upgrade the discharge due to applicant's length and quality of service, to include combat service, as compared to the medically unmitigated basis for applicant's separation. (3) The applicant contends good service, including a combat tour. The Board considered this contention and determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, as compared to the medically unmitigated basis for applicant's separation. (4) The applicant contends an upgrade would allow applicant to obtain service related 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 the discharge is inequitable based on the applicant's length and quality of service, to include combat service, as compared to the medically unmitigated 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 to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD and other behavioral health conditions partially mitigated applicant's misconduct of AWOL and FTR, and the unmitigated misconduct of disorderly conduct and writing insufficient funded check on multiple occasions were minor infractions that when compared to applicant's length and quality of service, to include combat service, make the current discharge inequitable. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JKN. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: No Change a. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210003223 1