1. Applicant's Name: a. Application Date: 23 May 2016 b. Date Received: 8 August 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the applicant's request is based on equity. The counsel provided a summary of the applicant's enlistments and discharges, assignments and achievements, and the circumstances and events that led to his AWOL offenses. The applicant expresses that he is deeply regretful for the damage his behavior may have caused and humbly apologizes. The counsel provided that the following information renders his UOTHC discharge inequitable, and make him deserving of an upgrade: He was treated unfairly by his command as he was punished for making legitimate congressional inquiries about the termination of his Basic Housing Allowance (BAH) after one payment, which created a family financial crisis and led him to go AWOL; his record of service reflects sufficient period of honest and faithful service that outweighed any incidents of misconduct; and since his discharge, he established an excellent conduct, a long record of employment and honorable deeds, and taken responsibility for his life and tried to make amends to the Army by holding it in high esteem in his travels and during his service to his community. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant had mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. A review of military medical records indicated SM first sought behavioral health treatment on 31 May 2007 due to marital problems. In August 2007 he was diagnosed with an Adjustment Disorder with Prolonged Depressed Mood and reported financial stress due to not being paid properly and was in the process of setting up a financial meeting with his Command. Medical note dated 20 August 2007 SM reported stress related to issues with his NCO who took him off receiving rations for no reason. SM reported being unable to purchase food for his family because they were living off post and things had become very hard for him. Medical note dated 27 August SM reported stress due to living paycheck to paycheck. Medical note dated 24 September 2007 SM reported his NCO was trying to prevent him from attending medical appointments, he didn't know what to do and didn't know if he could make it through the stress. Medical note dated 15 Oct 2007 medical provider indicated she was considering a diagnosis of mood cycling disorder and had prescribed SM Depakote for his symptoms of depression and irritability. Medical note dated 3 April 2008 indicated SM was prescribed Ambien for sleep concerns and stress related to continued financial stress since arriving to school at Fort Gordon. Medical provider determined SMs insomnia was unresponsive to medications alone because his condition was related to family/social issues. Medical note dated 25 April 2008 indicated SM had increased depressive symptoms to include poor frustration tolerance, tearfulness, dysphoria, sleep problems, increased drinking behaviors, anhedonia, and recurrent thoughts about going AWOL in order to obtain separation from service. Last medical note dated 18 June 2008 indicated SM felt targeted by his NCOs and Commander due to their lack of assistance with financial situation. He was in the process of selling non-essential items in his house to help. In summary, SMs Depression in response to financial strain and military/occupational stressors can be associated with avoidance behaviors such as going AWOL; therefore, there is a nexus between this applicant's misconduct and his behavioral health symptoms. In a records review conducted at Arlington, VA on 13 October 2017, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge and AWOL (i.e. in-service diagnosis of depression), and as a result it is inequitable. 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. This action entails restoration of grade to E-3/PFC. (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: 10 July 2009 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 20 May 2009, the following charge was preferred, with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge: Charge: Violation of Article 86, UCMJ, for absenting himself from his unit without authority on 2 October 2008, until 5 May 2009. (2) Legal Consultation Date: 7 May 2009 (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: 18 June 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 October 2007 / 3 years b. Age at Enlistment / Education / GT Score: 28 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13F10, Fire Support Specialist / 3 years, 6 months, 9 days (includes the involuntary excess leave for 64 days from 8 May 2009 to 10 July 2009, creditable for all purposes, except pay and allowances) d. Prior Service / Characterizations: RA (7 January 1999 to 30 July 1999) / UOTH RA (7 February 2006 to 28 October 2007) / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Nine DA Forms 4187 (Personnel Actions) show the following statuses: PDY to AWOL, effective 9 July 2008; AWOL to PDY, effective 15 July 2008; PDY to AWOL, effective 9 July 2008; AWOL to PDY, effective 15 July 2008; PDY to AWOL, effective 16 July 2008 AWOL to PDY, effective 22 July 2008; PDY to AWOL, effective 23 July 2008; AWOL to DFR, effective 22 August 2008; DFR to PDY, effective 29 September 2008; PDY to AWOL, effective 2 October 2008; and AWOL to DFR, effective 1 November 2008 Three DA Forms 4187 (Personnel Actions) contained in the Applicant's Separation File report the following statuses: PDY to AWOL, effective 9 July 2008; DFR to PDY, effective 29 September 2008; and DFR to PDY, effective 5 May 2009, AWOL since 2 October 2008. Report of Return of Absentee, dated 29 September 2008, indicates the applicant surrendered to military authorities on 29 September 2008, with a DFR date of 22 August 2008, and date of absence as 23 July 2008. Report of Return of Absentee, dated 5 May 2009, indicates the applicant surrendered to military authorities on 5 May 2009. Memorandum, subject; AWOL/Interview Report Chapter 10/Chapter 14, dated 7 May 2009, rendered the first sergeant, indicates in pertinent part, that the reason the applicant went AWOL was due to having "family problems that [he] had to take care of," and that he saw "no one" prior to going AWOL. Charge Sheet described at the preceding paragraph 3c(1). Discharge Orders, dated 14 March 2008. i. Lost Time / Mode of Return: 295 days (Note, information below are not included on his DD Form 214, but according to DA Forms 4187 on file): (AWOL: 9 July 2008, until 15 July 2008, for 6 days / NIF); (AWOL: 16 July 2009, until 22 July 2008, for 6 days / NIF); (AWOL: 23 July 2009, until 29 September 2008, for 68 days / Surrendered to Military Authorities); and (AWOL: from 2 October 2008, until 5 May 2009, for 215 days / Surrendered to Military Authorities) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 23 May 2016, with attorney-authored brief; DD Form 214 with ending date 30 July 1999; DD Form 214 for service under current review; ERB; and nine supporting/character reference statements. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that since the applicant's discharge, he established an excellent conduct, a long record of employment and honorable deeds, and taken responsibility for his life and tried to make amends to the Army by holding it in high esteem in his travels and during his service to his community. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, "In Lieu of Trial by Court-Martial." The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. 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 Chapter 10, AR 635-200, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. Hrecord documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends the discharge was unjust because he was treated unfairly by his command and punished for making legitimate congressional inquiries about the termination of his BAH. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided in support of his issues, with his request for an upgrade of the discharge. The third party statements provided with the application speak highly of the applicant's character. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The applicant contends that he was having pay issues, which created a family financial crisis causing him to go AWOL, and ultimately led to his discharge. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. In consideration of the applicant's post-service accomplishments, the Board can find that his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 13 October 2017, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the discharge and AWOL (i.e. in-service diagnosis of depression), and as a result it is inequitable. 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. This action entails restoration of grade to E-3/PFC. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. Restore (Restoration of) Grade to: E-3/PFC AUTHENTICATING OFFICIAL: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160014030 1