1. Applicant's Name: a. Application Date: 10 April 2019 b. Date Received: 17 May 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, she was willing and able to return to her basic training unit if she were given more time to find care for her two minor children. She was on emergency leave due to the death of her father-in-law. Upon returning home she found her two kids were left with strangers and her husband had returned to his birth country. She contacted her unit and told them what was going on and asked for two more weeks to find suitable care for her children. She was told no, and she must return by the date given or she would be considered AWOL. She then asked if she could report back with her children and some sort of accommodations be made. She was again told no and no extension would be allowed under any circumstances. She did her due diligence to honor her obligation to the Army, but was left without options. It took her approximately four weeks to get her mother legal guardianship through probate court. She called her duty station to ask if she could return and was told no, she had been dropped from the roles. In a records review conducted on 25 August 2021, and by a 4-1 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service. The applicant only served 60 days in basic training prior to going AWOL, given the extenuating circumstances around the AWOL and time elapsed since the discharge, as a result, the characterization of service is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to uncharacterized. Please see Section 9 of this document for more detail regarding the Board's decision. (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: 5 November 2004 c. Separation Facts: (1) Date DD Form 458 (Charge Sheet): On 18 October 2004, the applicant was charged with: Charge I: Violating Article 86, UCMJ, for being AWOL from 5 December 2001 to 13 October 2004. (2) Legal Consultation Date: 18 October 2004 (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: 22 October 2004 / Under Other than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 October 2001 / 5 years b. Age at Enlistment / Education / GT Score: 26 / NIF / 116 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 2 months, 2 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Ordinary Leave" to "Absent Without Leave (AWOL)," effective 5 December 2001; From "AWOL" to "Dropped From Rolls (DFR)," effective 4 January 2002; and, From "Dropped From Rolls (DFR)," to "Present for Duty (PDY)," effective 13 October 2004. i. Lost Time / Mode of Return: 1041 days: (AWOL, 5 December 2001 - 12 October 2004) / apprehended by civilian authorities and returned to military control j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Orders 306-0171. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (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, 10 USC 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 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), 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 Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7b states 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) Paragraph 3-7c states Under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army (4) 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. (5) Paragraph 10-8a, stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, 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, sec II.) (6) Paragraph 10b stipulates 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. 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 "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. f. 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 Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the 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 AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the discharge should be upgraded because she did her due diligence to honor her obligation to the Army by requesting more time. She was willing and able to return to basic training if given more time to find care for her two minor children. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends she made contact with her unit and asked for two more weeks of leave to find care for her children. She called her duty station to ask if she could return and was told no, she had been dropped from the rolls. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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? No. The Board's Medical Advisor, a voting member, reviewed all available medical records and found no BH diagnoses on the applicant. The applicant provided no documents or testimony that, when applying liberal consideration, convinced the Board of a possible mitigating BH condition. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A (4) Does the condition or experience outweigh the discharge? N/A b. Response to Contentions: (1) The applicant requests an upgrade to general (under honorable conditions). A general discharge (GD) under honorable conditions are is authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The uncharacterized description of service accurately reflects the applicant's overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier's military service. It means the Soldier has not been in the Army long enough for a character of service to be rated as honorable or otherwise. The Board determined that relief was warranted in a partial upgrade from UOTH to UNC. (2) The applicant contends the discharge should be upgraded because she did her due diligence to honor her obligation to the Army by requesting more time. She was willing and able to return to basic training if given more time to find care for her two minor children. The Board considered this contention during board proceedings. (3) The applicant contends she made contact with her unit and asked for two more weeks of leave to find care for her children. She called her duty station to ask if she could return and was told no, she had been dropped from the rolls. The AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. c. The Board determined that the characterization of service was too harsh based on the applicant's short service prior to AWOL. The applicant only served 60 days in basic training prior to going AWOL, given the extenuating circumstances around the AWOL and time elapsed since the discharge, as a result, the characterization of service is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to uncharacterized. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. d. Rationale for Decision: (1) The Board determined that the characterization of service was too harsh based on the applicant's length and quality of service. The applicant only served 60 days in basic training prior to going AWOL, given the extenuating circumstances around the AWOL and time elapsed since the discharge, as a result, the characterization of service is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to uncharacterized. (2) The Board determined the narrative reason was proper and equitable. (3) The Board determined the SPD code and RE code were proper and equitable and voted not to change them. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Uncharacterized 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 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 AR20190006969 3