1. Applicant's Name: a. Application Date: 21 April 2021 b. Date Received: 22 April 2021 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant through legal counsel requests an upgrade to honorable. The applicant seeks relief contending, in effect, that the discharge should be upgraded based on diagnosed service-connected PTSD and positive aspects of the applicant military service which greatly outweigh any conduct that led to the applicant discharge. The applicant was diagnosed with PTSD on 19 June 2018, has a 100 percent Veterans Administration (VA) disability rating due to the PTSD diagnosis. However, this diagnosis was never considered in the applicant's 2009 upgrade application. Pursuant to the Kurta and Carson memorandums, the applicant is owed a second personal appearance hearing so that the DRB may fully consider the circumstances of the applicant discharge and PTSD diagnosis. Secondly, the applicant was highly regarded by the military community and peers. The instances which resulted in the applicant's discharge were a result of antipathy from certain superiors who treated the applicant more harshly during the applicant military service because the applicant's father was well known in the Army. The applicant greatly appreciates the board in the reconsideration given the circumstances. The applicant contends the discharge was inequitable because the mental health conditions were a major contributing factor in the conduct that led to a general (under honorable condition) discharge and that the condition existed and occurred during the applicant service. The applicant believes the stigma of a general (under honorable condition) discharge continues to weigh on the applicant and potentially affect future employment opportunities and ability to access VA benefits. This upgrade is particularly important to the applicant given the applicant's family background and the applicant's pride in the military. The record shows the applicant's mental health conditions should be mitigating factors in the misconduct that led to the applicant discharge. Apart from a brief period near the end of the applicant's three years of otherwise meritorious service, the applicant's time in the Army was honest and faithful. Evidence in the AMHRR indicates the applicant had a prior record review on 14 June 2010 and a personal appearance hearing on 8 August 2011. In a telephonic personal appearance hearing conducted on 1 August 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's PTSD mitigated the basis for 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. 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: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 21 February 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 February 2007 (2) Basis for Separation: The applicant was informed of the following reasons: for failure to report for formation on 27 September 2006, failure to report to work on divers' occasions between 6 November 2006 and 20 November 2006, failure to report to work on 1 December 2006, failure to report to ASAP appointment on 11 December 2006, disrespect to SSG M, and making a false official statement to SSG M. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 2 February 2007 (5) Administrative Separation Board: None (6) Separation Decision Date / Characterization: NIF / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 March 2004 / 3 years b. Age at Enlistment / Education / GT Score: 19 / GED / 123 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B1P, Infantryman / 2 years, 11 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (4 October 2005 to 6 January 2006 and 28 June 2006 to 6 October 2006) f. Awards and Decorations: AAM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum of Reprimand, dated 13 September 2006, for having submitted to a preliminary breath test, which tested positive for alcohol. The applicant was administered a breathalyzer test, which showed a blood alcohol content of .106 grams of alcohol per 210 milliliters of breath. The applicant was cited with driving under the influence (alcohol), operating a vehicle without headlights and no seat belt. CG Article 15 dated 21 November 2006, for on diver's occasion failing to go at the prescribed time to appointed place of duty between 6 November 2006 and 20 November 2006, being disrespectful in deportment towards a noncommissioned officer 20 November 2006, and making a false official statement with intent to deceive to a noncommissioned officer. The punishment consisted of reduction to E-3, forfeiture of $372.00, and extra duty and restriction for 14 days. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 5 January 2007, which indicates the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Chapter 3, AR 40-501. It was noted that the applicant was evaluated at Tuttle Behavioral Health Center on 5 January 2007. The evaluation consisted of a clinical interview, review of available records, and command consultation. The applicant was not suicidal or homicidal. However, the applicant has recently demonstrated poor coping skills. The applicant denied any previous psychiatric history or psychiatric hospitalizations and denied any mental health symptoms. Also, the applicant denied any ETOH/Substances issues. However, the applicant received a DUI in July 2006 and was to follow up with ASAP but never did. The applicant was cleared for any administrative action deemed appropriated by the applicant command. The Department of Veterans Affairs letter submitted by the applicant with the application dated 17 September 2019, indicates that the applicant evaluation of post-traumatic stress disorder (PTSD) which was currently 50 percent disabling was increased to 100 percent effective 19 June 2019. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; legal brief; documents reference medical issues from the Department of Veterans Affairs; and letters of recommendation / support which includes exhibits 1-14 i.e. (information reports, letters of support, memorandum of reprimand, documents from separation packet, decision letter from the Department of Veterans Affairs, mental status evaluation, and report of medical history). 6. POST SERVICE ACCOMPLISHMENTS: The applicant contends he is currently working as a contractor for the Department of State and has a clean criminal record. 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 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 14-12b, addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, pattern of misconduct. 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-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 through legal counsel requests an upgrade to honorable. The applicant Army Military Human Resource Record (AMHRR) indicates separation action was initiated against the applicant for failing to report for formation on 27 September 2006, failure to report to work on divers' occasions between 6 November 2006 and 20 November 2006, failure to report to work on 1 December 2006, failure to report to ASAP appointment on 11 December 2006, and disrespect and making a false official statement to SSG M. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635- 200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." The applicant seeks relief contending, in effect, that the discharge should be upgraded based on diagnosed service-connected PTSD and positive aspects of the applicant military service which greatly outweigh any conduct that led to the applicant discharge. The applicant was diagnosed with PTSD on 19 June 2018, has a 100 percent Veterans Administration (VA) disability rating due to the PTSD diagnosis. However, this diagnosis was never considered in the applicant's 2009 upgrade application. Pursuant to the Kurta and Carson memorandums, the applicant is owed a second personal appearance hearing so that the DRB may fully consider the circumstances of the applicant discharge and PTSD diagnosis. Secondly, the applicant was highly regarded by the military community and peers. The instances which resulted in the applicant's discharge were a result of antipathy from certain superiors who treated the applicant more harshly during the applicant military service because the applicant's father was well known in the Army. The applicant greatly appreciates the board in the reconsideration given the circumstances. The applicant contends the discharge was inequitable because the mental health conditions were a major contributing factor in the conduct that led to a general (under honorable condition) discharge and that the condition existed and occurred during the applicant service. The applicant believes the stigma of a general (under honorable condition) discharge continues to weigh on the applicant and potentially affect future employment opportunities and ability to access VA benefits. This upgrade is particularly important to the applicant given the applicant's family background and the applicant's pride in the military. The record shows the applicant's mental health conditions should be mitigating factors in the misconduct that led to the applicant discharge. Apart from a brief period near the end of the applicant's three years of otherwise meritorious service, the applicant's time in the Army was honest and faithful. The applicant contentions were noted to include the Department of Veterans Affairs letter submitted by the applicant with the application the applicant has been awarded 100 percent service-connected disability effective 19 June 2019. It should also be noted, the Mental Status Evaluation, dated 5 January 2007, indicates the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Chapter 3, AR 40-501. The applicant was evaluated at Tuttle Behavioral Health Center on 5 January 2007. The evaluation consisted of a clinical interview, review of available records, and command consultation. The applicant was not suicidal or homicidal. However, the applicant had recently demonstrated poor coping skills. The applicant denied any previous psychiatric history or psychiatric hospitalizations and denied any mental health symptoms. Also, the applicant denied any ETOH/Substances issues. However, the applicant received a DUI in July 2006 and was to follow up with ASAP but never did. The applicant was cleared for any administrative action deemed appropriated by the applicant command. The fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during the applicant discharge processing that would have warranted the applicant separation processing through medical channels. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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 following diagnoses or experiences which can, under certain circumstances, potentially mitigate or excuse misconduct leading to separation: Adjustment Disorder, PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in-service with an Adjustment Disorder and is service-connected at 100% for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma, substance use, avoidance, and difficulty with authority, the basis for separation is mitigated by the applicant's PTSD. (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. As a result, the ADRB applied liberal consideration and found that the applicant's PTSD completely outweighed the listed basis for separation b. Response to Contention(s): The applicant seeks relief contending that the discharge should be upgraded based on diagnosed service-connected PTSD and positive aspects of military service which greatly outweigh any conduct that led to discharge. The Board found this contention valid and determined that relief was warranted based on the applicant's PTSD mitigating the basis for separation. c. The Board determined the discharge is inequitable based on the applicant's PTSD mitigated the basis for separation. d. Prior Decisions Cited: AR2003095669, AR20040000193, AR20050005016. (1) The applicant's counsel requests the ADRB afford the applicant's case the same level of consideration afforded in prior ADRB case, specifically AR2003095669. The records show that applicant submitted a DD Form 149 to the ABCMR, whose purview is much wider that ARBA, whereas the current applicant submitted a DD Form 293 to ARBA. However, the Board considered this contention and determined that, despite that the applicant did not specify the principles of equity contained in a prior DRB decision or describe the relationship to the applicant's case, the prior case AR2003095669 is not relevant to the applicant's case. In AR2003095669, the applicant was separated with a General Discharge with a narrative reason of Pattern of Misconduct for various acts of minor misconduct including deceit and misuse of government credit card, which was upgraded to Honorable because the Board determined that the punishment was too harsh for the offenses in relation to the applicant's almost 23 years of total military service. In the current case, applicant was discharged with a General Discharge and a Pattern of Misconduct narrative reason for multiple failures to report, disrespect, and making a false official statement. As the applicant did not specify the equity principles or relationship of the prior case to the applicant's case, the Board determined that the attempt to compare lacked merit and was non-persuasive during deliberations. (2) The applicant's counsel requests the ADRB afford the applicant's case the same level of consideration afforded in prior ADRB case, specifically AR20040000193. The Board considered this contention and determined that, despite that the applicant did not specify the principles of equity contained in a prior DRB decision or describe the relationship to the applicant's case, the prior case AR20040000193 is not relevant to the applicant's case. In AR20040000193, the applicant was separated with a General Discharge with a narrative reason of Pattern of Misconduct for unsatisfactory performance, dishonored checks, disobedience and disrespect toward non-commissioned officers, failures to repair, and failure to pay just debts; which was upgraded to Honorable with a narrative change to Secretarial Authority because the offenses were outweighed by the totality of the applicant's service record - length and quality of service, nature of offenses, elapsed time (14 years) since discharge, and post-service accomplishments serving honorably in the Reserves. In the current case, applicant was discharged with a General Discharge and a Pattern of Misconduct narrative reason for multiple failures to report, disrespect, and making a false official statement. As the applicant did not specify the equity principles or relationship of the prior case to the applicant's case, the Board determined that the attempt to compare lacked merit and was non-persuasive during deliberations. (3) The applicant's counsel requests the ADRB afford the applicant's case the same level of consideration afforded in prior ADRB case, specifically AR20050005016. The Board considered this contention and determined that, despite that the applicant did not specify the principles of equity contained in a prior DRB decision or describe the relationship to the applicant's case, the prior case AR20050005016 is not relevant to the applicant's case. In AR20050005016, the applicant was separated with a General Discharge with a narrative reason of Pattern of Misconduct for disrespect, dereliction of duty, and failure to follow orders, which was upgraded to Honorable with a narrative change to Misconduct because the Board felt the punishment was too harsh because of the applicant's generally acceptable personal conduct and performance of duty. In the current case, applicant was discharged with a General Discharge and a Pattern of Misconduct narrative reason for multiple failures to report, disrespect, and making a false official statement. As the applicant did not specify the equity principles or relationship of the prior case to the applicant's case, the Board determined that the attempt to compare lacked merit and was non-persuasive during deliberations. e. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's substance use, avoidance behaviors, and difficulty with authority. Thus, the prior characterization is no longer appropriate. (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 and the mitigating condition is also service- limiting. 11. 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 e. 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 AR20210011417 1