1. Applicant's Name: a. Application Date: 25 November 2020 b. Date Received: 8 December 2020 c. Counsel: None 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, after being injured in Iraq he underwent approximately 19 surgeries in a matter of 4 months. He was prescribed a cocktail of various pain medications for over 16 months and he became addicted. He was under the influence of the painkillers and was not conscious of his daily decisions. Due to his addiction a tragedy occurred and he paid for his mistake. He has served his time and is trying to rebuild his life. He was not allowed to introduce his injury, medications, or post-traumatic stress disorder (PTSD) in his defense. He still suffers from the complications of his injury and his under other than honorable conditions characterization of service prevents him from seeking medical and mental services. Prior to his injury and the events that followed, he was an exemplary Soldier. In a records review conducted on 3 November 2021, and by a 4 -1 vote, the Board determined the characterization of service was inequitable based on the applicant's length to include combat service, prior period of Honorable service and the circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. Please see Section 10 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 / Under Other Than Honorable Conditions b. Date of Discharge: 13 February 2007 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 23 October 2006, the applicant was charged with 3 specifications of failing to go at the prescribed time to his appointed place of duty; 1 speciation of failing to obey a lawful order; and 1 specification of making a false official statement. (2) Legal Consultation Date: 6 December 2006 (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: 23 January 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 April 2006 / NIF b. Age at Enlistment / Education / GT Score: 19 / Less Than HS Diploma / 109 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman, 3 years, 5 months, 15 days d. Prior Service / Characterizations: RA, 8 May 2003 - 19 April 2006 / HD e. Overseas Service / Combat Service: SWA, Korea / Iraq (8 August 2004 - 31 July 2005 f. Awards and Decorations: PH, AGCM, NDSM, GWOTSM, GWOTEM, KDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: See Charge Sheet as previously described in 3c(1). On 19 September 2006, the applicant was charged with a traffic accident with damage to private property; driving under the influence; careless driving; displaying expired number plates; and disrespect to a noncommissioned officer. On 23 October 2006, the applicant was arrested and charged with Murder by the Colorado District & County Courts. On 25 October 2006, the Orders pertaining to the retirement of the applicant were revoked. The applicant was counseled on multiple occasions for various forms of misconduct. i. Lost Time / Mode of Return: Civilian Confinement, 23 October 2006 - 13 February 2007 j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Personal Statement, Letters of Support-3 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), 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) 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 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 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 memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) 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. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The evidence of record 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends after being injured in Iraq he underwent approximately 19 surgeries in a matter of 4 months. He was prescribed a cocktail of various pain medications for over 16 months and he became addicted. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends he has served his time and is trying to rebuild his life. The applicant contends he still suffers from the complications of his injury and his under other than honorable conditions characterization of service prevents him from seeking medical and mental services. Eligibility for veteran's benefits to include medical benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant contends prior to his injury and the events that followed, he was an exemplary Soldier. The Board considered the applicant's service accomplishments and the quality of his service. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good conduct during his military service. 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. The applicant held in-service diagnosis of PTSD and Anxiety Disorder NOS based on combat traumas. (2) Did the condition exist or experience occur during military service? Yes. The applicant's diagnoses of PTSD and Anxiety Disorder NOS occurred while in-service based on combat traumas. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Based on liberal consideration and the applicant's actual basis for separation, versus civil conviction and incarceration, the FTR, Failure to Obey, and False Statement is mitigated by PTSD due to avoidance and difficulty with authority. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member, that mitigating BH illnesses of PTSD and Anxiety Disorder NOS are often associated with FTR, Failure to Obey, False Statement. As a result, the ADRB applied liberal consideration and found that the BH conditions outweighed the cause for separation. b. Response to Contention(s): (1) The applicant contends after being injured in Iraq he underwent approximately 19 surgeries in a matter of 4 months. He was prescribed a cocktail of various pain medications for over 16 months and he became addicted. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD and Anxiety Disorder NOS mitigating the applicant's FTR, Failure to Obey, False Statement charges. (2) The applicant contends he has served his time and is trying to rebuild his life. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. (3) The applicant contends prior to his injury and the events that followed, he was an exemplary Soldier. The Board recognizes and appreciates the applicant's willingness to serve and considered this contention during board proceedings. c. The Board determined the characterization of service was inequitable based on the applicant's length to include combat service, prior period of Honorable service and the circumstances surrounding the discharge (i.e. in-service diagnosis of PTSD). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the applicant had BH conditions of PTSD and Anxiety Disorder NOS which mitigated the applicant's misconduct for FTR, Failure to Obey, False Statement charges. Thus the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20210006706 1