1. Applicant's Name: a. Application Date: 17 March 2017 b. Date Received: 23 March 2017 c. Counsel: d. Previous Records Review: 4 January 2012, AR20110012696 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, the requests are based on equitable and improper bases. His discharge is inequitable because it was based on a single instance of being AWOL resulting from his documented medical and mental health conditions. His discharge was improper because, in light of the applicant's documented family and personal problems, and his otherwise honorable service, his separation packet did not include his medical examination and mental status evaluation reports, including statement for any reasonable ground for belief that the applicant was at the time of his misconduct, mentally defective or abnormal, such as a diagnosed personality disorder, for consideration as required by paragraph 10-3 of AR 635-200. The counsel detailed the circumstances and events surrounding the applicant's AWOL offense; in that, he was "'emotionally paralyzed and unable to make reasoned decisions,'" as determined by a mental health professional a few months prior to the applicant going AWOL and under those circumstances, the counsel asserted, the UOTH characterization and the reason for his discharge are inequitable. Since his discharge, he demonstrated continued commitment to public service as a police officer, that he was a family man by providing care for his daughter's special needs, and being successful as a salesman and earning an associate's degree with honors. Given the circumstances, his otherwise honorable service should not be characterized by the anomaly of his unauthorized absence-he was suffering from a debilitating medical condition, which has since been diagnosed. Per the Board's Medical Officer, based on the information available for review at the time, the applicant's AHLTA diagnoses included Adjustment Disorder with Anxiety, Adjustment Disorder with Depression, Anxiety, Panic Disorder, Malingering, and Mood Disorder due to General Medical Condition. Applicant developed problems while in Army with experiencing severe chest pain, especially when running PT. He had an extensive medical workup and no cause was found. Psychiatry felt he had a cardiac neurosis and Panic Disorder. BH tried to get command to give him a Chap 5-17 separation. Initially command agreed but then began demanding multiple revisions of the DA Form 3822 (Report of Mental Status Evaluation) because they felt it was never good enough. Psychiatry rewrote the form 3 times but, in the end, command refused to discharge applicant. He was told by BH that, based on his current level of function, that he was eligible for MEB. Applicant indicated, however that he did not want to wait months to get out. He wanted out of the Army as soon as possible. Shortly thereafter, he went AWOL. His diagnosis at the time of his AWOL was Adjustment DO with Anxiety. Review of VA records (JLV) reveals only DOD content. Based on the information available at this time, the applicant did not have a mitigating BH condition. It is recognized that the applicant suffered from severe chest pain with accompanying anxiety. He contends that the Army was unable to adequately diagnose and treat his chest pain and anxiety. It is true that he remained symptomatic with his chest pain and anxiety throughout his time in the military. The medical record indicates that he reported a history of utilizing the same behavior as an adolescent to get attention (see 10 Nov 2005 AHLTA Mental Health note). Additionally, the record indicates that the applicant had a tendency to not follow through with treatment recommendations, stopping medications on his own and no-showing for medical appointments. Had he followed through on treatment recommendations, he may very well have experienced an improvement in his symptoms. In a personal appearance hearing conducted at Arlington, VA on 30 October 2017, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, severe family matters, personal testimony and the circumstances surrounding the AWOL (i.e. diagnosis of behavioral health issues), 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. (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: 12 January 2007 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 4 October 2006, 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 30 March 2006, and remained absent until 2 October 2006. (2) Legal Consultation Date: 5 October 2006 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 8 December 2006 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 December 2003 / 3 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 13F10, Fire Support Specialist / 2 years, 6 months, 10 days (includes the involuntary excess leave for 99 days from 6 October 2006 to 12 January 2006, creditable for all purposes, except pay and allowances) (Note that DD Form 214 reflects a period of prior service; however, there is no record of that service-the applicant's enlistment documents show he did not have prior service) d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM; NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum, dated 4 October 2006, subject: AWOL/Interview Report Chapter 10, rendered by the first sergeant, indicates the applicant went AWOL due to family and marital problems, and that he has seen a psychologist prior to the AWOL offense. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 186 days (AWOL: from 30 March 2006, until 2 October 2006) / Surrendered to military authorities j. Diagnosed PTSD / TBI / Behavioral Health: Applicant's documentary evidence consisting of health records show diagnoses of behavioral health issues of mood disorder due to general medical condition; adjustment disorder with anxiety, depressed mood, and anxious mood, panic disorder without agoraphobia; phase of life or life circumstance problem; and "psychiatric diagnosis or condition deferred on AXIS I." 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 17 March 2017, with attorney-authored brief, dated 15 March 2017; previous records review Case Report and Directive; medical health records, dated 8, 9, 15, 28, 30 September 2005, 6, 11, 20, 27, 31 October 2005, 1, 7, 10, 21, 29 November 2005, 2, 12, 14, 22 December 2005, 11, 12, 18, 20, 27, and 31 January 2006; memorandum, subject: Separation under AR 635-200, Chapter 5, dated 8 February 2006; counseling statement, dated 4 January 2006; assignment orders, dated 16 October 2006; applicant's chapter 10 separation packet; pre- separation counseling checklist; recognition of outstanding performance memorandum, dated 9 March 2004; AAM Certificate; certificate of achievement; two officer of the month certificates for August 2010 and May 2011; letter, dated 23 July 2012; certified basic training course certificate and diploma; NRA basic pistol course certificate; ethics training course certificate, dated 13 April 2012; three identification pictures; and two character reference statements, dated 14 and 15February 2017. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, since his discharge, he demonstrated continued commitment to public service as a police officer, that he was a family man by providing care for his daughter's special needs, and being successful as a salesman and earning an associate's degree with honors. 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. National Defense Authorization Act 2017 provided 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) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided 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; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade his under other than honorable conditions discharge to honorable and to change the narrative reason for his discharge. 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's contentions regarding his behavioral health issues were carefully considered. A careful review of the available record and the applicant's documentary evidence indicates the applicant's behavioral health issues symptoms existed, and the applicant contends they were contributing factors that led to his misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate relief by changing the reason for separation and/or the characterization of service. The applicant requests to change the reason for his separation; however, the narrative reason for his separation is governed by specific directives. The narrative reason specified by AR 635- 5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. In consideration of the applicant's service accomplishments and quality of his service prior to the incident of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents. b. The applicant presented no additional issues. c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 30 October 2017, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, severe family matters, personal testimony and the circumstances surrounding the AWOL (i.e. diagnosis of behavioral health issues), 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. 11. 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. SPD/RE Code Change to: No Change f. Restoration to Grade: No Change 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 AR20170005149 2