1. Applicant's Name: a. Application Date: 3 February 2020 b. Date Received: 9 February 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks relief contending, in effect, they suffered from Post-Traumatic Stress Disorder due to three combat deployments. At the time of discharge the applicant was suffering from Post-Traumatic Stress Disorder (PTSD). The applicant was given a combined rating of 70-percent, from the Department of Veterans Affairs, of which 30-percent was for PTSD, effective the date of their discharge from the Army. b. Board Type and Decision: In a records review conducted on 29 September 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, prior period of honorable service, and the circumstances surrounding the discharge (Post-Traumatic Stress Disorder). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and change to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the reentry code was proper and equitable and voted not to change it. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct, (Serious Offense) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 2 February 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 December 2015 (2) Basis for Separation: The applicant was informed of the following reasons: * on or about 9 June 2009 to on or about 28 July 2009, absent without leave * on or about 9 June 2010, failed to obey a lawful order issued by a noncommissioned officer (NCO) * on or about 15 June 2010, disrespectful in language toward an NCO * on or about 24 August 2011, failed to go at the time prescribed to appointed place of duty * on or about 11 November 2011, violated a lawful general regulation by wrongfully using a synthetic cannabinoid (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 9 January 2012 (5) Administrative Separation Board: On 9 January 2011, the applicant conditionally waived consideration of the case before an administrative separation board, contingent upon receiving a characterization of service no less favorable than general (under honorable conditions) discharge. (6) Separation Decision Date / Characterization: 24 January 2012 / General (Under Honorable Conditions)/ RE-3 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 August 2008 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 5 years, 8 months, 8 days d. Prior Service / Characterizations: * ARNG, 12 January 2005 to 24 May 2006 / HD * IADT, 16 February 2005 to 3 June 2005 / HD * (Concurrent Service) e. Overseas Service / Combat Service: SWA / Iraq (10 July 2006 to 20 October 2006; 12 October 2007 to 14 November 2008); Afghanistan (14 May 2010 to 14 April 2011) f. Awards and Decorations: ACM-CS, ICM-2CS, ARCOM, VUA, NDSM, GWTSM, ASR, OSR-2, NATOMDL, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 8 July 2010, reflects the applicant received nonjudicial punishment for, on or about 9 June 2010, having knowledge of a lawful order, failed to obey and on or about 15 June 2010, being disrespectful in language towards an NCO. His punishment consisted of forfeiture of $337.00 pay for one month and 4 days of extra duty. (2) A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 7 September 2011, reflects the applicant received nonjudicial punishment for, on or about 24 August 2011, failing to go at the time prescribed to the appointed place of duty and with the intent to deceive, made a false statement. Punishment consisted of forfeiture of $455.00 pay for one-month, extra duty and restriction for 14 days. (3) A Report of Mental Status Evaluation (MSE), dated 11 October 2011, reflects the applicant has the mental capacity to understand and participate in the proceedings, mentally responsible and meets the retention requirements. The Brigade Behavioral Health Officer stated there was an Axis I diagnosis of adjustment disorder with Mixed Disturbance of Emotions and Conduct and is psychiatrically cleared for any administrative action deemed appropriate by command. In the Remarks section, the Brigade Behavior Health Officer states: (a) The Servicemember (SM) recently redeployed for their 3rd combat deployment. SM reported no injury from the previous deployments and did not endorse PTSD or Traumatic Brain Injury (TBI) symptoms after being screened for both. SM reported that their performance has deteriorated over the past several years due to having to manage a difficult spouse, financial problems, and guilt over poor job performance. (b) SM denied suicidal or homicidal ideation and demonstrated no impairments. SM is psychiatrically cleared for administrative separation. (4) Three Developmental Counseling Forms, for domestic dispute with girlfriend, suicidal tendencies, admittedly smoking synthetic drugs, debt avoidance counseling, and intent to separate under Army Regulation 635-200, paragraph 14-12c for patterns of misconduct. (5) A memorandum, Headquarters and Headquarters Company, 1st Battalion, 502nd Infantry Regiment, subject: Separation under Army Regulation 635-200, Paragraph 14- 12c(1) Commission of a Serious Offense, 15 December 2011, notified the applicant of initiating actions for separation for commission of serious offenses, as stated above in paragraph 3c(2). The applicant acknowledge receipt of notification that same day. (6) A memorandum, Headquarters, 2nd Brigade Combat Team, memorandum subject: Separation under Army Regulation 635-200, Paragraph 14-12c(1) Commission of a Serious Offense, 24 January 2012, the approving authority directed the applicant will be separated prior to the expiration of current term of service and the Soldier's service be characterized as General (Under Honorable Conditions). (7) On 2 February 2012, the applicant was discharged accordingly, the DD Form 214 provides the applicant completed 5 years, 8 months, and 8 days of net active service this period. (8) On 27 July 2022, Army Review Boards Agency sent a letter to the applicant requesting they submit additional documentation in support of their medical contentions in their petition. As of date the applicant has not submitted additional documentation in support of their petition. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: On 27 July 2022, the Army Review Boards Agency sent the applicant a letter and requested they provide additional documentation in support of the PTSD claim on their petition. As of date, no additional documentation has been submitted. (2) AMHRR Listed: MSE/BHE as described in previous paragraph 4h(3). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), in lieu of DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (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, Title 10, U.S. Code, Section 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 (DoD) 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 DoD Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 6 September 2011, provided the basic authority for the separation of enlisted personnel. (1) 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. (2) 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. (3) Chapter 14 (Separation for Misconduct) established policy and prescribed 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. (4) Paragraph 14-3 (Characterization of Service or Description of Separation) prescribed 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. (5) Paragraph 14-12c (Commission of a Serious Offense), stated a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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: (1) 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. (2) 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. (3) 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): a. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. The available evidence provides the applicant was experiencing indiscipline over a period of 14 months. The commander-initiated separation specifically for AWOL and disrespect to a noncommissioned officer that occurred while deployed and use of synthetic drugs that occurred post-deployment. Review of the records provide the administrative irregularity in the proper retention of records, specifically, the AMHRR is void of documents showing whether the commander directed an initial Alcohol and Substance Abuse Program screening according to Army Regulation 600-85. c. The available evidence provides the applicant demonstrated a pattern of misconduct (failure to obey a lawful order, disrespectful language, failure to report, and wrongful use of cannabinoids) where the indiscipline occurred while deployed and upon redeployment that led to the applicant's discharge with a general discharge vice an under other than honorable conditions characterization of service which is normally considered appropriate for an action of this nature. (1) The Brigade Behavioral Health Officer stated the applicant reported no injury from the previous deployments and did not endorse PTSD or Traumatic Brain Injury (TBI) symptoms after being screened for both. The applicant reported that their performance has deteriorated over the past several years due to having to manage a difficult spouse, financial problems, and guilt over poor job performance. There was an Axis I diagnosis of adjustment disorder with Mixed Disturbance of Emotions and Conduct and is psychiatrically cleared for any administrative action deemed appropriate by command. (2) They completed 5 years, 8 months, and 8 days of net active service this period and approximately 4 years, 6 months, and 8 days of their 6-year reenlistment contractual obligation. The applicant deployed on three occasions for a combined total of 24 months d. Chapter 14 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. e. Neither the applicant nor the AMHRR provide documentation of a diagnosis of PTSD. f. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses: the applicant held in-service diagnoses of Adjustment Disorder, Depression, Major Depressive Disorder, and Post-Traumatic Stress Disorder with chronic substance abuse. Post-service, the applicant is service connected for combat related Post-Traumatic Stress Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held in-service diagnoses of Post-Traumatic Stress Disorder with chronic substance abuse. (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, difficulty with authority, and avoidance, the basis for separation is mitigated. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Post-Traumatic Stress Disorder outweighed the absent without leave, failure to obey lawful order, disrespectful language toward a Noncommissioned Officer, failure to report, wrongfully use a synthetic cannabinoid basis for separation for the aforementioned reasons. b. Response to Contention(s): (1) Regarding the applicant's contention they suffering from PTSD due to three combat deployments and that they were awarded a 30-percent VA Service-Connected disability from the VA for PTSD. The Board determined that this contention was valid and voted to upgrade the characterization of service due to Post-Traumatic Stress Disorder mitigating the applicant's absent without leave, failure to obey lawful order, disrespectful language toward a Noncommissioned Officer, failure to report, wrongfully use a synthetic cannabinoid misconduct. (a) The AMHRR provides a mental status evaluation that indicates the applicant may have an adjustment disorder, however, they were not, at the time suffering from PTSD. In an attempt to complete the record, the Army Review Boards Agency sent a formal request to the applicant to support this medical attention in July 2022; however, to date the applicant has no submitted additional documentation. (b) Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability c. The Board determined the discharge is inequitable based on the applicant's length and quality of service, to include combat service, prior period of honorable service, and the circumstances surrounding the discharge (Post-Traumatic Stress Disorder). Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and change to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. The Board determined the reentry code was proper and equitable and voted not to change it. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's Post-Traumatic Stress Disorder mitigated the applicant's misconduct of absent without leave, failure to obey lawful order, disrespectful language toward a Noncommissioned Officer, failure to report, wrongfully use a synthetic cannabinoid. 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. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: 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 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 AR20220005101 1