1. Applicant's Name: a. Application Date: 23 November 2018 b. Date Received: 26 November 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. The Board would consider her for a possible upgrade as instructed by Department of Defense Instruction (DoDI) 1332.28. The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, was informed by the command that the applicant would receive a General (Under Honorable Conditions) discharge. However, upon return from maternity leave, such was not the case and was court-martialed. During service, the applicant "was not in a mentally sound place." The applicant was suffering. The command knew the actions were out of fearing for the lives of unborn children. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Major Depressive Disorder. The applicant provided civilian documentation with diagnoses of PTSD. The applicant does not have any VA records available for review. In summary, the applicant's BH diagnoses are not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 18 March 2020, 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: 9 January 2018 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 17 October 2017, the applicant was charged with the following, and as promulgated by Special Court-Martial No. 22: Special Court-Martial Order No. 22, dated 8 January 2018, reflects that the applicant was arraigned by a Special Court-Martial Empowered to Adjudge a Bad Conduct discharge on 1 November 2017, for the following offenses, and that no pleas or findings were entered: Charge I: Violation of Article 85, UCMJ: On 28 November 2016, the applicant, without authority and with intent to remain away therefrom permanently, absented herself from her unit and remained absent in desertion until she was apprehended on 8 June 2017 Charge II: Four specifications of violating Article 86, UCMJ. Specifications 1, 2, and 3: On three separate occasions on 23 February 2016, 4 November 2016, and 28 October 2016, the applicant failed to go at the time prescribed to her appointed place of duty, to wit: 0630 accountability formations, respectively, and Specification 4: On 19 October 2016, the applicant, without authority, absented herself from her unit and remained absent until 20 October 2016. The accused having been arraigned, the GCMCA the court-martial proceedings were terminated on 1 November 2017. Subsequently, the accused's request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, was approved on 1 December 2017, for Issuance of a discharge Under Other Than Honorable Conditions. The Charges and Specifications were then dismissed and all rights, privileges, and property of which the accused has been deprived by virtue of these proceedings were restored. (2) Legal Consultation Date: 14 November 2017 (NIF) (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: 1 December 2017 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 February 2014 / 4 years b. Age at Enlistment / Education / GT Score: 25 / 14 years / 97 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25U10, Signal Support System Specialist / 3 years, 4 months, 16 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Six DA Forms 4186 (Personnel Actions) shows the applicant's duty statuses: Dated 8 November 2016, AWOL to PDY, effective 20 October 2016 Dated 29 November 2016, PDY to AWOL, effective 29 November 2016 Dated 3 January 2017, AWOL to PDY, effective 3 January 2017 (notes AWOL apprehension) Dated 13 June 2017, DFR to PDY, effective 8 June 2017 Dated 13 June 2017, PDY to CCA (Civilian Confinement Authority) to AWOL, effective 8 June 2017 Dated 13 June 2017, CCA (Civilian Confinement) to PDY, effective 9 June 2017 Charge Sheet and SPCM Order No. 2 described at the preceding paragraph 3c(1) with its associated documents. i. Lost Time / Mode of Return: 193 days (AWOL (19 October 2016 to 20 October 2016, for 1 day), (29 November 2016 to 2 January 2017, for 34 days), (3 January 2017 to 8 June 2017, for 157 days), and (9 June 2017 to 10 June 2017, for 1 day) / The second AWOL period extending to the third AWOL, the report shows the applicant was apprehended by civil authorities. j. Diagnosed PTSD / TBI / Behavioral Health: The applicant's documentary evidence, a medical record at page 11, indicates medical history of "PTSD" and anxiety. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 23 November 2018, and medical records, dated 2 November 2016 and 14, 15, 24 December 2016. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 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. Further, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, section II.) However, for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper, and when characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. 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 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 DoDI 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. Accordingly, the applicant requests an upgrade of her under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant's record of service, and the issues and documents submitted with her 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 she indicated she understood she 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. Her record documents no acts of significant achievement or valor, and did not support the issuance of an honorable or a general (under honorable conditions) discharge by the separation authority at the time of discharge. 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 she should have been retained on Active Duty. The applicant contends the discharge was unjust because her command had informed her that she would receive a General (Under Honorable Conditions) discharge, instead, upon returning from a maternity leave, she was informed of her court-martial charges, while her command knew that her actions were due to fearing for the lives of her unborn children. 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 her issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she was 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 sufficient evidence has been provided with the request for an upgrade of the discharge. The applicant contends she was suffering and not "mentally sound," during her discharge process. A careful review of the available record and the applicant's documentary evidence indicates her behavioral health issues symptoms existed, and the applicant contends they were contributing factors that led to her misconduct. If the Board determines the applicant's behavioral health issues were significant contributing factors to her misconduct, it can grant appropriate relief by changing the reason for separation and/or the 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 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 18 March 2020, 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 AR20180016758 1