1. Applicant's Name: a. Application Date: 18 December 2017 b. Date Received: 29 December 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to general (under honorable conditions) or honorable. The counsel on behalf of the applicant seeks relief contending, in pertinent part and in effect, an upgrade would allow the applicant a better and more stable employment to provide for the daughter and her medical needs as the applicant has sole custody. She has Cerebral Palsy and epilepsy, which requires the applicant to provide diligent attention and care. The applicant's struggles began after returning from Iraq and found the wife having affairs with multiple Soldiers, followed by being evicted from the home and made to live out of the car-a fellow Soldier had moved in with the applicant's wife and son. Enduring the harassment from fellow Soldiers and spending three days in psychiatric ward are qualifying equitable relief. The applicant was depressed, suicidal, homicidal, and extremely stressed, which caused issues with work and performance. The applicant learned from recruiters that the platoon sergeant wrongfully informed the applicant, by advising to go AWOL for 30 days and return, so the applicant could be promptly discharged. The applicant returned to the unit after 27 days of being AWOL. The unit continued to harass the applicant and was unable to retrieve items from the house, or allowed to see the son. When the applicant's requests for transfer were denied, the applicant went AWOL again, from 22 April 2004 to 30 May 2005 (turned in at Fort Knox, KY), for a total of 403 days. Since discharge, although the applicant was struggling to find work during a period of time, the applicant and daughter were homeless, and the applicant worked to create a meaningful relationship with the community and religion. The applicant was described as being "'a devout single father to a young daughter with substantial needs and a good friend to many in [the] congregation,'" and that the applicant is "'seeking to more fully contribute to society by pursuing a college education.'" The applicant successfully completed the first year of online classes at a university as "'the applicant is bettering oneself through education.'" The applicant volunteers as a special-need counselor and participates in missionary service, visits members of the congregation as a home teacher, and accompanies boy scouts on high adventure trips. The current discharge has an adverse effect on career prospects. The applicant needs to clear this discharge in order to become successful, get an education, help people, and support the family. The applicant is now more mature and wise in decision-making skills. The applicant also indicates service in Iraq, an AAM for volunteering to serve in Iraq, GWOTEM, and GWOTSM, are not listed on his DD Form 214. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, and the Armed Forces Health Longitudinal Technology Application (AHLTA), notes do not indicate any medical information regarding the applicant. Joint Legacy Viewer (JLV) indicates the applicant has not registered with the Veterans Affairs (VA). In summary, based on the lack of medical information, no statement regarding medical mitigation can be made. In a records review conducted at Arlington, VA on 30 November 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (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: 22 June 2005 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 2 June 2005, the following charge was preferred, with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge: Charge: two specifications of violating Article 86, UCMJ, for being AWOL on 6 March 2004, and remaining absent until 5 April 2004, and being AWOL on 22 April 2004, and remaining absent until 30 May 2005. (2) Legal Consultation Date: 3 June 2005 (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: 14 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 February 2002 / 3 years b. Age at Enlistment / Education / GT Score: 19 / GED / 111 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13M10, Multiple Launch Rocket System (MLRS)/High Mobility Artillery Rocket System (HiMARS) / 2 years, 3 months, 21 days (includes excess leave for 78 days from 6 June 2005 to 22 August 2005, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: Korea, SWA (NIF) / NIF f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Return of Absentee, dated 30 May 2005, indicates the applicant returned and surrendered to military authorities on 30 May 2005, after being AWOL since 22 April 2004. Charge Sheet described at the preceding paragraph 3c(1). i. Lost Time / Mode of Return: 433 days (AWOL on two separate occasions, from 8 March 2004 to 4 April 2004, for 28 days, and from 22 April 2004, until 29 May 2005, for 403 days ) / After each AWOL period, the applicant surrendered to military authorities. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 18 December 2017; attorney letter, dated 22 December 2017; applicant's affidavit; DD Form 214; discharge orders; separation file; FG Article, dated 13 April 2004 (for first AWOL period); DA Form 2-1 (Personnel Data); enlistment documents; Pathway Official Academic Records/Transcript, dated 28 July 2016; three character reference letters; and email correspondence, dated 2 September 2015, with Circuit Court "Agreed Paternity and Support Order." 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, that he successfully completed his first year of online classes at a university as "'he is bettering himself through education.'" He volunteers as a special-need counselor, and participates in missionary service, visits members of the congregation as a home teacher, and accompanies boy scouts on high adventure trips. 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 an upgrade of his under other than honorable conditions discharge to general (under honorable conditions) or honorable. 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 veterans' 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 which involved enduring the harassment from fellow Soldiers and spending three days in psychiatric ward, and that he was depressed, suicidal, homicidal, and extremely stressed, were carefully considered. A careful review of the available record and the applicant's documentary evidence provided no behavioral health diagnoses, and the applicant indicated that they were contributing factors that led to his misconduct. However, upon further review, the Board determined that there is no documentary evidence of any medical diagnoses. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., documentary evidence of his medical or behavioral health diagnoses) for the Board's consideration because they are not available in the official record. The applicant has expressed his desire to have better job opportunities and the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veterans' 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. In consideration of the applicant's post-service accomplishments and quality of his service prior to the AWOL incidents, 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 third party statements provided with the application speak highly of the applicant's character and performance. 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. The applicant contends his service in Iraq, his AAM for volunteering to serve in Iraq, and GWOTEM award, are not listed on his DD Form 214. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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 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 30 November 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change 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 AR20180001141 6