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 narrative reason, reentry code, and separation code change. The applicant seeks relief contending, in effect, in October 2008, enlisting in the U.S. Army National Guard's Active First Program, at the age of 17 years old, and was transferred to the Army, Active Component in February 2009. In March 2010, two days before scheduled to deploy to Iraq, the applicant was in a car accident and suffered serious blunt force trauma to the head. The applicant began to experience the short and long term mental and physical effects of the head injury and trauma. Thirteen days after the accident, the applicant was marked absent without leave (AWOL) from the Army as a direct result of the diagnosed Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Adjustment Disorder, Anxiety Disorder, and Depression. The Army determined the applicant was unfit to deploy and granted convalescent leave for seven days. The applicant became confused about what day to sign back in to the unit and mistakenly reported for duty several days late. Upon being informed of the AWOL, the applicant, who was suffering from PTSD and TBI, among other mental health conditions, did not return to the base to address the AWOL status until June 2010. The applicant had no other infractions during the years of service. On 24 August 2010, the applicant was discharged. The applicant's medical records show the misconduct was directly related to the mental health conditions, suffered during service, including PTSD and TBI. The applicant was diagnosed by Army medical personnel during service with PTSD, Adjustment Disorder, Anxiety Disorder, Depression, and a possible TBI as a result of the accident. The applicant has since been diagnosed with TBI by Dr. J.M., a licensed neuropsychologist. The doctor concluded on 4 June 2019, the applicant's misconduct was directly attributable to symptoms of TBI resulting from the car accident. Pursuant to the "2014 Hagel Memo" and "2017 Clarifying Guidance," the applicant requests the Board grant liberal consideration in determining the behavior underlying the discharge was a direct result of PTSD, TBI, and mental health conditions sufficiently explain and mitigate the conduct. The applicant remained committed to serving the community and the county as a licensed Emergency Medical Technician (EMT) and Wildland Firefighter. The applicant seeks to reenlist in the Army, but the discharge made the applicant ineligible. After nine years, the symptoms of PTSD and TBI, among other mental health conditions, no longer inhibit the applicant's ability to perform as an EMT and firefighter, the discharge inhibits the ability for medical treatment and other benefits under the GI Bill. The applicant further details the contentions in an allied Affidavit and Applicant's Brief provided with the application. In a records review conducted on 5 May 2022, and by a 4-1 vote, the Board voted to grant relief in the form of a change to 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 / Honorable b. Date of Discharge: 24 August 2010 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 29 July 2010, the applicant was charged with: The Charge: Violating Article 86, UCMJ, for being AWOL from 29 March to 18 June 2010. (2) Legal Consultation Date: 29 July 2010 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 13 August 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 February 2009 / 3 years, 14 weeks b. Age at Enlistment / Education / GT Score: 17 / GED / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 1 year, 7 months, 14 days d. Prior Service / Characterizations: ARNG, 21 October 2008 - 20 February 2009 / UNC e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge Sheet as described in paragraph 3c. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 29 March 2010; From "Absent Without Leave" to "Dropped From Rolls (DFR)," effective date 30 April 2010; and, From "Dropped From Rolls," to "Present for Duty," effective date 18 June 2010. Developmental Counseling Form, dated 28 June 2010, for revocation of pass privileges, Report of Return of Absentee, dated 28 June 2010, reflects the applicant went AWOL on 29 March 2010 and was apprehended by civil authorities and returned to military control on 28 August 2010 (discrepancy with Personnel Action form PDY date of 18 June 2010). Sworn Statement, dated 30 June 2010, reflects when asked what led to the decision to go AWOL, the applicant stated the Monday following the convalescent leave, the applicant went to the hospital for a stomach illness and received an excuse for two days, ending on Wednesday. The applicant called the Staff Duty to find out where to take the doctor's note. The applicant was informed of the AWOL, which caused the applicant to panic and led to the decision not to return at the time. The applicant further explained the circumstances concerning the AWOL. Fort Carson Operations Center Incident Worksheet (5-W), undated, reflects the applicant, regarding the AWOL, was sought by FBI and Billings Police department for involvement in skinhead gang in Montana. The applicant was involved in a motor vehicle accident prior to deployment and was given one-week convalescent leave to recover. The applicant was due to return to work on 26 March 2010 and was marked AWOL as of 29 March 2010. The applicant provided Johnson County Healthcare Center's medical records reflecting the applicant was involved in a motor vehicle accident on 16 March 2010, in which the applicant received multiple injuries, to include a head injury, which required sutures and determined to have a possible concussion. i. Lost Time / Mode of Return: 82 days (AWOL, 29 March 2010 - 18 June 2010) / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: Report of Behavioral Health Evaluation, dated 3 August 2010, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. The applicant did not meet the criteria for Post-Traumatic Disorder, but required further evaluation for the history of mild Traumatic Brain Injury to determine if the applicant met full retention standards. The applicant was diagnosed with Anxiety Disorder, not otherwise specified; Rule/Out Traumatic Brain Injury. The applicant provided in-service medical records, dated 30 January 2019, reflecting the applicant was diagnosed with Anxiety Disorder, not otherwise specified; Seizure Disorder Generalized Convulsive; Adjustment Disorder; Concussion, loss of consciousness of unspecified duration; Open Wound of the Head, multiple sites; and, Acute Reaction to Stress. The provider indicated an assessment of Possible PTSD. The applicant provided a Neuropsychological Consultation Report, dated 4 June 2019, reflecting the applicant had a history of Traumatic Brain Injury and found the applicant's misconduct with the Army in March 2010, was directly related to the neurocognitive disorder experienced at the time. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Pro Bono Program Agreement; legal brief with listed Exhibits A-S; self-authored brief; electronic mail message; additional third party letters; Certificate of Achievement; two photographs. 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends being committed to the community and the country as a licensed Emergency Medical Technician (EMT) and Wildland Firefighter. 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) 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. (4) 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.) (5) 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. (6) 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 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. RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests a narrative reason, reentry code, and separation code change. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The honorable discharge received by the applicant was appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed to Secretarial Authority. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an honorable 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 applicant contends the SPD code should be changed. SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DoD and the Military Services to assist in the collection and analysis of separation data. SPD Codes are controlled by OSD and then implemented in Army policy AR 635-5-1 to track types of separations. The SPD code specified by Army Regulations for a discharge under Chapter 10, is "KFS." The applicant contends PTSD, Adjustment Disorder, Anxiety Disorder, Depression, and TBI affected behavior, which led to the discharge. The AMHRR reflects 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 the command. The applicant was mentally responsible and had the mental capacity to understand and participate in the proceeding. The applicant did not meet the criteria for Post-Traumatic Disorder but required further evaluation for the history of mild Traumatic Brain Injury to determine if the applicant met full retention standards. The applicant was diagnosed with Anxiety Disorder, not otherwise specified; Rule/Out Traumatic Brain Injury. The separation authority considered the BHE. The applicant provided in-service medical records reflecting diagnoses: Anxiety Disorder, not otherwise specified; Seizure Disorder Generalized Convulsive; Adjustment Disorder; Concussion, loss of consciousness of unspecified duration; Open Wound of the Head, multiple sites; and, Acute Reaction to Stress. The provider indicated an assessment of Possible PTSD. The applicant provided civilian medical documents revealing the applicant was later diagnosed with TBI due to a motor vehicle accident while in the service. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends good service. The Board considered the service accomplishments and the quality of service. The applicant contends an upgrade would allow medical benefits and educational benefits through the GI Bill. 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 desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends being committed to the community and the country as a licensed Emergency Medical Technician (EMT) and Wildland Firefighter. The third party statements provided with the application speak highly of the applicant. They all recognize 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. Applicant experienced a significant head injury (TBI) via motor vehicle accident immediately prior to going AWOL. And while not formally diagnosed with PTSD in service, there is sufficient evidence in AHLTA to support that he was also suffering from PTSD as a result of the accident. Both of these BH conditions could mitigate the basis for applicant's separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant experienced a significant head injury (TBI) via motor vehicle accident during military service and immediately prior to going AWOL. While not formally diagnosed with PTSD in service, there is sufficient evidence in AHLTA to support that he was also suffering from PTSD during military service as a result of the vehicle accident. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor determined that the medical condition mitigates the basis of separation. The Board's Medical Advisor, after applying liberal consideration, opined applicant's TBI and PTSD mitigate applicant's AWOL that was the basis for separation because of the nexus between applicant's TBI/PTSD and avoidance. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the applicant's TBI/PTSD outweighed the medically mitigated AWOL as the basis of separation. b. Response to Contention(s): (1) The applicant contends the SPD code and narrative reason for the discharge needs changed to Secretarial Authority. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted in the form of a change to the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority. (2) The applicant contends PTSD, Adjustment Disorder, Anxiety Disorder, Depression, and TBI affected behavior led to the discharge. The Board determined that this contention was valid and voted to grant relief in the form of a change to the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority due to suffering from PTSD and TBI that outweighed the applicant's medically migrated AWOL that was the basis for separation. (3) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to the Board voting to grant relief in the form of a change to the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority based on the applicant suffering from PTSD and TBI, which outweighed the medically mitigated AWOL that was the applicant's basis for separation. (4) The applicant contends good service. The Board considered the service accomplishments and the quality of service. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during Board proceedings. (5) The applicant contends an upgrade would allow medical benefits and educational benefits through the GI Bill. 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. (6) The applicant desires to rejoin the Military Service. The Board determined that 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. c. Since the applicant's TBI/PTSD outweighed the medically mitigated AWOL as the basis of separation and the current characterization of service for the period under review is Honorable, the Board voted to grant relief in the form of a change to 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 not to change the applicant's characterization of service because the current characterization of service for the period under review is already Honorable. (2) The Board voted to grant relief in the form of a change to 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. (3) The Board voted to change the RE code to RE-3 under the same pretext as described above. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change 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 AR20210003318 1