1. Applicant's Name: a. Application Date: 23 March 2021 b. Date Received: 30 March 2021 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 requests an upgrade of his characterization of service, a change to his narrative reason for discharge, separation code, and a change to his reentry eligibility (RE) code. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that 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 Army Discharge Review Board will consider the applicant for a possible upgrade to honorable. The applicant seeks relief contending that he suffers with PTSD and other mental health conditions and he would like an upgrade of his discharge for the purpose of receiving help and benefits. He believes his discharge was completely unfair, he was being picked on and singled out by his NCO's because of his age and whom his fiancé was at the time, the more he reported it the worse it got. It seemed like everything he did was looked at as if he was a criminal. It all started when he got to Iraq, while working the Tower Guard, he witnessed a convoy get bombed and hit with several IED'S at a check point. Soon after he was admitted to mental health and suicide watch. To this day he still has nightmares, cold sweats and blackouts which affect his everyday life. It's hard for him to keep a job and during a black-out he ended up hurting someone he really loved and was convicted of a felony; part of his sentence was being sent to a mental health and rehabilitation center because of his experience from the military. He has been crying for help for years now, but all he got was medication and a doctor telling him to keep coming to see him. While assigned to Iraq he was awarded the Army Achievement Medal because he got better and was feeling better. In a records review conducted on 13 December 2021, and by a 3 - 2 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD, Substance Induced Mood Disorder, Alcohol Use Disorder, Cannabis Use Disorder, and Unspecified Depressive Disorder). 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. Please see Section PA 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, Paragraph 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 8 January 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: for having on or about 7 January 2008 and 30 January 2008, left his guard tower and was found sleeping while he was posted as a sentinel; Failing to report to formation and disobeying the order of a noncommissioned officer on 29 September 2008; Failing to report to duty on 30 September 2008; Failing to report for formation, being disrespectful, and failing to obey the order of a noncommissioned on 1 October 2008; Failing to report for work call on 2 October 2008; Wrongfully possessing marijuana on 28 October 2008; Wrongfully using marijuana between 13 October 2008 and 12 November 2008; and Failing to obey the order of a noncommissioned officer on 13 November 2008. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: Undated (5) Administrative Separation Board: The applicant's undated election of rights memorandum indicates the applicant waived consideration of his case by an administrative separation board. The applicant indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general under honorable condition discharge was issued to him. He understood that if he received a discharge/characterization of service, which was less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board does not imply that his discharge will be upgraded. (6) Separation Decision Date / Characterization: 19 December 2008 / Under Other Than Honorable Conditions Discharge 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 January 2007 / 3 years, 25 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 100 c. Highest Grade Achieved / MOS / Total Service: E-2 / 92W10, Water Treatment Specialist / 1 year, 11 months, 23 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (2 December 2007 to 9 July 2008) f. Awards and Decorations: ARCOM, AAM, MUC, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 18 February 2008, for while receiving special pay and being on post as a sentinel at Guard Tower #11, left his post before he was regularly relieved on 7 January 2008 and while at Guard Tower #8 was found sleeping upon his post on 30 January 2008. The punishment consisted of forfeiture of $673.00 pay per month for two months and extra duty for 45 days. Military Police Report, dated 28 October 2008, indicates the applicant was the subject of investigation for possession of marijuana Memorandum from the Army Substance Abuse Program (ASAP), indicates the applicant tested positive for THC 283 on 12 November 2008. The applicant received several negative counseling statements for various acts of misconduct and duty performance. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 20 November 2008, indicates the applicant had no history of psychiatric disorders or prior outpatient mental health treat. The applicant had not been involved in substance rehabilitation and no inpatient psychiatric treatment. He noted and expressed symptoms of a mental health disorder with further assessment needed in the future. The applicant met the retention standards prescribed in AR 40-501, and there was no psychiatric disease or defect that warrant disposition through medical channels. The applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and a self-authored letter. 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 Service-member discharged from active military service within 15 years of the Service-member'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 12b, 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-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 an upgrade of his characterization of service, a change to his narrative reason for discharge, separation code, and a change to his reentry eligibility (RE) code. The applicant's 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. However, 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 that 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's AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates that separation action was initiated against the applicant for leaving his guard tower, being found sleeping while he was posted as a sentinel; failing to report to formation and disobeying the order of a noncommissioned officer on several occasions; failing to report to duty; being disrespectful, failing to report for work call; wrongfully possessing marijuana; and wrongfully using marijuana. The applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635- 200 with an under other than honorable conditions. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly 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 14, paragraph 14-12b, is "JKA." The applicant seeks relief contending that he suffers with PTSD and other mental health conditions and he would like an upgrade of his discharge for the purpose of receiving help and benefits. He believes his discharge was completely unfair, he was being picked on and singled out by his NCO's because of his age and whom his fiancé was at the time, the more he reported it the worse it got. It seemed like everything he did was looked at as if he was a criminal. It all started when he got to Iraq, while working the Tower Guard, he witnessed a convoy get bombed and hit with several IED'S at a check point. Soon after he was admitted to mental health and suicide watch. To this day he still has nightmares, cold sweats and blackouts which affect his everyday life. It's hard for him to keep a job and during a black-out he ended up hurting someone he really loved and was convicted of a felony; part of his sentence was being sent to a mental health and rehabilitation center because of his experience from the military. He has been crying for help for years now, but all he got was medication and a doctor telling him to keep coming to see him. While assigned to Iraq he was awarded the Army Achievement Medal because he got better and was feeling better. The applicant's contentions were noted; however, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, were prejudicial to good order and discipline, and were the basis of applicant's separation. The applicant expressed his desire for an upgrade of his discharge for the purpose of receiving help and benefits. 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. 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 and found a post-service, VA provider diagnosis of PTSD that may mitigate the applicant's basis for separation. The Board's Medical Advisor found additional BH diagnoses, including Substance Induced Mood Disorder, Alcohol Use Disorder, Cannabis Use Disorder, and Unspecified Depressive Disorder, however, none of these conditions could mitigate the applicant's basis for serparation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found evidence that those medical conditions listed above existed during applicant's military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. Per liberal consideration, the Board's Medical Advisor opined that PTSD mitigates the applicant's basis for separation, as PTSD mitigates drug use as a means of self-medication, and separately FTRs and disrespect that are avoidance factors mitigated by PTSD. (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, that PTSD mitigates, but even after applying liberal consideration, determined that applicant's medical conditions do not fully mitigate the extensive pattern of misconduct that was the basis for separation. b. Response to Contentions: (1) 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 14, paragraph 14-12b, is "JKA." Since the SPD is directly linked to the Narrative Reason for separation, which the Board found proper and equitable, there will be no adjustment to the SPD code. (2) The applicant seeks relief contending that he suffers from PTSD and other mental health conditions and would like an upgrade of his discharge to receive help and benefits. The Board does not grant relief to gain or enhance benefit opportunities. However, The Board determined that applicant's PTSD contention partially mitigated the applicant's basis for separation and voted to upgrade the characterization of service due to the inequity when looking at the totality of the circumstances, including applicant's combat service and post-service homelessness. The Board considered, but found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. The Board found that the applicant's service, given the nature of the misconduct, including non-fatal shooting of the mother of his child, aggravated assault, possession of a firearm, IPV perpetrator, and cruelty to children, was not sufficiently meritorious to warrant an honorable discharge. (3) The applicant expressed his desire for an upgrade of his discharge for the purpose of receiving help and benefits. 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. c. The majority of the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, and the circumstances surrounding the discharge (i.e. post-service diagnosis of PTSD, Substance Induced Mood Disorder, Alcohol Use Disorder, Cannabis Use Disorder, and Unspecified Depressive Disorder) as well as applicant's post-service homelessness. 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 Board voted to change the applicant's characterization of service to General, Under Honorable Conditions because the current characterization was inequitable when considering the applicant's combat service and post-service homelessness. The offenses of non-fatal shooting of the mother of his child, aggravated assault, possession of a firearm, IPV perpetrator, and cruelty to children outweighed an upgrade beyond GD. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and 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 AR20210011646 1