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 honorable. The applicant, through counsel, requests a reentry code change. The applicant seeks relief contending, in effect, the applicant's combat service in Operation Enduring Freedom, as a Soldier in Operations Polar Harpoon and Anaconda in Afghanistan, impacted the applicant the mental health resulting in the applicant's abuse of drugs and alcohol to cope with the emotional problems. The applicant states that the applicant's drug and alcohol abuse resulted in several Article 15s, nonjudicial punishment (NJP) proceedings. The applicant claims the applicant was later assaulted by fellow Soldiers, leaving the applicant mentally and physically traumatized. The applicant states that these events intensified the feelings of panic and caused the applicant to go AWOL out of fear. The applicant states the applicant was sentenced to six months in prison and received a bad conduct discharge. The applicant claims that the applicant suffered from undiagnosed PTSD during the events which led to the discharge. The applicant requests consideration based on the applicant's early life, including being raised in a military family; experiences during deployment; returning from deployment and circumstances surrounding the assault, to include self-medication with alcohol and drugs; attempt to commit suicide; and, the reasons the applicant went AWOL. The applicant suspected the assault was ordered by the leadership because the leadership acted indifferent that the applicant had been brutally attacked. The applicant states that the applicant has not used illegal substances in over a decade and is married with two daughters. The applicant states that the applicant was diagnosed with PTSD and receives regular counseling to learn how to cope with the PTSD. The applicant claims to be maintaining employment and volunteers in the community. In addition to a full-time job, the applicant is enrolled in college online. The applicant has ambitions of becoming a family law attorney. In 2015, the applicant's wages were garnished $15,923 due to the conviction and the applicant was forced to file for Chapter 7 Bankruptcy. The applicant claims to have served honorably, during which time the applicant received various awards. The applicant claims that the applicant was swiftly discharged with little to no rehabilitation, which has haunted the applicant for 15 years. The applicant claims that the discharge prevented the applicant access to VA benefits and made it difficult to find employment. In a records review conducted on 12 May 2022, and by a 5 - 0 vote, the Board denied the request upon finding the reentry code was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Secretarial Authority / AR 635-200, Chapter 15 / JFF / RE-3 / Honorable b. Date of Discharge: 24 March 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 9, dated 2 October 2003, on 17 July 2003, the applicant was found guilty of the following: Charge I, in violation of Article 86, UCMJ: Specification 1: On 8 April 2003, without authority, fail to go at the time prescribed to appointed place of duty, to wit: 0700 accountability formation. Plea: Guilty. Specification 3: On 8 May 2003, without authority, was absent from the unit until 12 May 2003. Plea: Guilty. Specification 4: On 16 May 2003, was absent from the unit until 22 May 2003. Plea: Guilty. Charge III, in violation of Article 112a, UCMJ, The Specification: Did between 29 and 31 April 2003, wrongfully use marijuana. Plea: Guilty. Charge IV, in violation of Article 134, UCMJ: Specification 1: Having been restricted to the limits of the barracks, place of duty, dining facility, place of worship, and medical facility, by a person authorized to do so, did on 2 May 2003, break restriction. Plea: Guilty. Specification II [sic]: Having been restricted to the limits of the barracks, place of duty, dining facility, place of worship, and medical facility, by a person authorized to do so, did on 6 May 2003, break restriction. Plea: Guilty. Additional Charge 3 [sic]: in violation of Article 95, UCMJ, The Specification: Having been placed in pre-trial confinement in the Lewis County Jail, Lowville, NY, by a person authorized to order confinement, did on 8 June 2003, escape from confinement. Plea: Guilty. Additional Charge 4 [sic]: in violation of Article 85, UCMJ (not guilty, but guilty of Article 86, UCMJ), The Specification: Did, on 8 June 2003, without authority and with intent to remain away therefrom permanently, absent from the place of duty, to wit: confinement at the SDNCO area in Building Number 10120, located at Fort Drum, NY, and did remain absent in desertion until apprehended on 10 June 2003. Plea: Not Guilty, but guilty of the lesser included offense of AWOL terminated by apprehension. Finding: Not Guilty, but guilty of the lesser included offense of AWOL terminated by apprehension, in violation of Article 86. (2) Adjudged Sentence: Forfeiture of $767 pay per month for six months; to be confined for six months; and, to be discharged from the service with a bad conduct discharge. (3) Date/Sentence Approved: 2 October 2003 / The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 56 days of confinement towards the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 24 January 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 August 2001 / 4 years / The applicant's AMHRR reflects the applicant was retained in service 77 days for the convenience of the government per AR 635-200 and was on excess leave for 890 days from 17 October 2003 to 24 March 2006. b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 113 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 4 years, 2 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (March 2002 - NIF) / The AMHRR reflects the applicant deployed to Afghanistan instead of Iraq. f. Awards and Decorations: NDSM, ASR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 9, as described in previous paragraph 3c. The applicant provided Chronological Record of Medical Care, dated 25 March 2003, reflecting the applicant was seen by medical personnel for bruises on head and upper body for two days due to an attack by several individuals in which the applicant was kicked and hit multiple times. The applicant was assessed with having head and body contusions following blunt trauma. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective date 22 May 2003; and, From "Confined by Military Authorities" to "Present for Duty," effective date 17 October 2003. The applicant provided medical records reflecting the applicant attempted to commit suicide while in Lewis County Jail and was seen on 8 June 2003, at the Lewis County Community Mental Health Center, for a suicide attempt and placed on 24-hour suicide watch. The applicant provided a Stipulation of Fact, dated 26 June 2003, Prosecution Exhibit 1 of the special court-martial proceedings, reflecting the applicant went AWOL for six days in January 2003, and while AWOL, the applicant committed criminal misconduct by breaking and entering a motor vehicle which caused the applicant to be incarcerated by the State of Michigan from 26 January to 21 March 2003, and sentenced to unsupervised probation for two years. The applicant was placed in pretrial confinement, when apprehended on 22 May 2003 and while in confinement, the applicant faked a suicide attempt to be removed from the county jail and be in a better position to escape. i. Lost Time / Mode of Return: 159 days: AWOL, 8 May 2003 - 12 May 2003 / NIF AWOL, 16 May 2003 - 21 May 2003 / Apprehended by Civilian Authorities CMA, 22 May 2003 - 7 June 2003 / Escaped from Confinement AWOL, 8 June 2003 - 10 June 2003 / Apprehended by (NIF) CMA, 11 June 2003 - 16 October 2003 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided: Coastal Primary Health Specialists, medical documents, dated 6 July 2018, reflecting the applicant was diagnosed with Post-Traumatic Stress Disorder, chronic; Anxiety; and, Depressive Disorder, Major Depressive Disorder, single episode, unspecified. Port Health letter, dated 25 July 2018, reflecting the applicant was diagnosed with Post- Traumatic Stress Disorder; Alcohol Use Disorder, severe in full remission; and, Amphetamine- Type Substance Use Disorder, severe, in full remission. Wake Forest Medical Center, Outpatient Psychiatry and Behavioral Medicine letter, dated 29 October 2021, reflecting the applicant was diagnosed with PTSD, war related, severe, with accompanying psychotic thoughts; Traumatic Brain Injury (TBI), and, insomnia, unspecified type. The letter summarizes the applicant's military experience and how the mental conditions are service connected. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; two DD Forms 293; counsel letter; legal brief, with Exhibits A through P (exhibit list available); supplemental legal brief with Exhibits 1 through 27 (see exhibit list available). 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends abstaining from the use of illegal drugs for a decade; being married with two daughters; visiting a counselor regularly and learning how to cope with PTSD; maintaining full-time employment, and, volunteering in the community. The applicant is enrolled in college online, with ambitions of becoming a family law attorney. 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), dated 25 September 2019, 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) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary 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. (4) Paragraph 15-3, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, general (under honorable conditions), or an uncharacterized description of service if in entry-level status. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided 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 identified the SPD code of "JFF" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 15, Secretarial Plenary Authority. 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-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. RE-3 Applies to: 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 a reentry code change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends the reentry code needs to be changed to RE-1. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-201, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or the RE code. An RE Code of "3" indicates the applicant requires a waiver before being allowed to reenlist. Recruiters can best advise a former service member as to the Army's needs at the time and are required to process waivers of reentry eligibility (RE) codes if appropriate. The applicant contends undiagnosed PTSD and an assault affected behavior which ultimately led to the discharge. The applicant provided several medical documents indicating diagnoses: Post-Traumatic Stress Disorder, chronic; Alcohol Use Disorder, severe in full remission; PTSD, war related, severe, with accompanying psychotic thoughts; Amphetamine-Type Substance Use Disorder, severe, in full remission; TBI; Anxiety; and, Major Depressive Disorder. The applicant provided third party statements reflecting the applicant's behavior prior to deployment in comparison to after the deployment and assault. The AMHRR is void of a mental status evaluation. The applicant contends the offenses leading to the discharge were minor. The AMHRR indicates the applicant committed many discrediting offenses. 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 leadership was responsible for the assault and failed to assist the applicant with the assault, the mental health condition, or rehabilitation. The applicant provided medical documents reflecting medical treatment for bruises to the head and upper body and a photograph with bruising. There is no evidence in the AMHRR the applicant sought assistance or reported the maltreatment by the command. In regards to the alcohol abuse, Army Regulation 600-85, paragraph 7-3 entitled voluntary (self) identification and referral, states voluntary (self) ID is the most desirable method of identifying substance use disorder. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of these problems has the personal obligation to seek help. Soldiers seeking self-referral for problematic substance use may access services through BH services for a SUD evaluation. The Limited Use Policy exists to encourage Soldiers to proactively seek help. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends good service, including a combat tour. The Board considered the service accomplishments and the quality of service. The applicant contends abstaining from the use of illegal drugs for a decade; being married with two daughters; visiting a counselor regularly and learning how to cope with PTSD; maintaining full-time employment, and, volunteering in the community. The applicant is enrolled in college online, with ambitions of becoming a family law attorney. The third party statement provided with the application speak highly of the applicant and recognizes the applicant's good conduct after leaving the Army. 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 applicant PTSD may mitigate the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant's PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The Board's Medical Advisor, after applying liberal consideration, determined that the applicant's PTSD partially mitigates the applicant's basis of separation (FTR, AWOL, breaking restriction, wrongful use of marijuana, and AWOL) because there is a nexus between PTSD and the applicant's sequela of symptoms (avoidance and self-medicating with substances). However, the Board Medical Advisor determined that PTSD does not mitigate the applicant's offense of escaping from pre-trial confinement because PTSD is not a likely cause of premeditated misconduct - escaping confinement. (4) Does the condition or experience outweigh the discharge? No. 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 PTSD did not outweigh the discharge RE code to warrant a change because the applicant's PTSD is a waiveable condition, but fails to meet medical procurement standards. b. Response to Contention(s): (1) The applicant contends the reentry code needs to be changed to RE-1. The Board considered this contention and determined the discharge was proper and equitable because the applicant's PTSD is a waiveable condition, but fails to meet medical procurement standards. Recruiters can best advise a former service member as to the Army's needs at the time and are authorized to process waivers of reentry eligibility (RE) codes, if appropriate. (2) The applicant contends good service, including a combat tour. The Board considered this contention and determined the applicant's RE-3 code was appropriate. Recruiters can best advise a former service member with respect to waiving a medical condition. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The RE code will not change because the applicant's PTSD is a waiveable condition, but fails to meet medical procurement standards and the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210003278 1