1. Applicant’s Name: a. Application Date: 5 August 2019 b. Date Received: 12 August 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 honorable. The applicant seeks relief contending, in effect, that a review of the discharge proceedings and likewise a rectification be rendered on the characterization of applicant’s discharge. The discharge was unjustifiable, given the depth of service-connected injuries and overall medical issues. The applicant was dealing with medical issues (continuously worsening) prior to the date of discharge. Additionally, the applicant believes the chain of command did not give applicant adequate due process rights and privileges. All medical documentation and military forms were supplied to applicant’s unit in a timely manner. In a records review conducted on 28 March 2022, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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: Unsatisfactory Participation / AR 135- 178, Chapter 12-1a (1), NGR 600-200, Chapter 6, Paragraph 6-35j / NA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 17 May 2019 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 October 2018 (2) Basis for Separation: The applicant was informed of the following reasons: being an unsatisfactory participant (AWOL) from drill and accumulated 26 unexcused absences during a 12-month period. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: undated / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: ARNG / 20 May 2013 / 6 years b. Age at Enlistment / Education / GT Score: 27 / Bachelor’s Degree / 118 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13F10, Fire Support Specialist / 5 years, 11 months, 28 days d. Prior Service / Characterizations: IET, 31 March 2014 – 2 August 2014 / HD (Continued Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Investigation Line of Duty and Misconduct status, dated 5 October 2017, reflects the applicant fell while conducting APFT test during November 2014 Inactive Duty Training (IDT). Letter of Instructions - Unexcused Absences, dated 6 November 2017, reflects the applicant was absent from the scheduled Unit Training Assembly (UTA) or Multiple Unit Training Assembly (MUTA) on 4-5 November 2017. Letter of Instructions - Unexcused Absences, dated 12 February 2018, reflects the applicant was absent from the scheduled UTA or MUTA on 10-11 February 2018. Letter of Instructions - Unexcused Absences, dated 9 March 2018, reflects the applicant was absent from the scheduled UTA or MUTA on 2-4 March 2018. Letter of Instructions - Unexcused Absences, dated 8 April 2018, reflects the applicant was absent from the scheduled UTA or MUTA on 7-8 April 2018. Letter of Instructions - Unexcused Absences, dated 5 June 2018, reflects the applicant was absent from the scheduled UTA or MUTA on 31 May 2018 to 4 June 2018. Letter of Instructions - Unexcused Absences, dated 3 July 2018, reflects the applicant was absent from the scheduled UTA or MUTA on 23-24 June 2018. Letter of Instructions - Unexcused Absences, dated 19 October 2018, reflects the applicant was absent from the scheduled UTA or MUTA on 13-16 October 2018. FG Article 15, dated 7 April 2018, for without authority, absent yourself from your unit (between 4 and 5 November 2017); (between 10 and 11 February 2018). The command has not yet made a decision whether or not applicant will be punished, and will not impose any punishment unless they have determined-that applicant committed the offenses. The applicant was given until 11 May 2018 at 1200 hours to response to the charges against applicant. Served by mail; unsigned by applicant. Lost Time / Mode of Return: AWOL / Unexcused Absences from Training for 24 periods, 10 -11 February 2018 to 13 -16 October 2018. i. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Medical Records; copies of Military Personnel Records; self-authored statement. 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 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills accrue during a one-year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in – the Soldier’s refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135-178. e. Army Regulation 135-178 prescribes the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) Paragraph 2-9a prescribes an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier’s conduct or performance of duty outweigh positive aspects of the Soldier’s military record. (3) Paragraph 2-9c, prescribes the service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under other circumstances. (4) Chapter 3-23 (Section IV), states, if separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent. (5) Chapter 12 (previously Chapter 13), in affect at the time, provides in pertinent part, that individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135–91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (6) Paragraph 12-3, Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in chapter 2, or uncharacterized if the Soldier is in entry-level status. f. National Guard Regulation (NGR) 600-200, establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas of: Classification and Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and, Command Sergeant Major Program. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-25, prescribes the discharge of Soldiers on active duty, (Title 10, USC) in AGR, IET, ADT, and ADOS status, as well as those ordered to active duty for contingency operations or under mobilization conditions, is governed by AR 635-200. All Outside Continental United States (OCONUS) training, including AT is conducted in Title 10 ADT status. Refer to AR 135-178 when considering enlisted Soldiers not on active duty and those on full-time National Guard duty (FTNGD) under Title 32 USC for discharge from the ARNG and as a Reserve of the Army. (3) Paragraph 6-35j defers to AR 135-178, chapter 13 for unsatisfactory participation. Commanders may recommend retention of Soldiers who have accrued 9 or more unexcused absences within a one-year period. Submit requests with justification for retention to the AG (MPMO/G1). Include verification that the notification requirements of AR 135-91 and paragraph 6-32 have been met. Soldiers must be notified by registered or certified mail the intent and projected discharge date. Retention approval authority can be delegated to the LTC command level. RE 3. 8. SUMMARY 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 honorable. The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends not being given the adequate due process rights and privileges by members of the chain of command. There is evidence in the AMHRR the applicant sought assistance or reported these issues to the chain of command. The applicant contends the discharge should have been for medical reasons. Army Regulation 135-178, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant contends the Veterans Administration has granted a service connection for medical conditions the applicant suffered while on active duty. The available medical evidence in the AMHRR is an indication the applicant was suffering from a disabling medical or mental condition during the discharge processing. The applicant contends the VA has granted a service-connected disability for back pain with sciatica, lumbar degenerative disc disease and lumbar spinal stenosis. The applicant provided a VA rating decision to support his contention, which reflects the applicant was rated 70 percent service connected for his injuries. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the Army when determining a member’s discharge. 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 DoD and VA medical records and found no mitigating BH diagnoses on the applicant. The applicant provided no documents or testimony of a condition or experience, that, when applying liberal consideration, could have excused or mitigated a discharge. (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 Contention(s): (1) The applicant contends not being given the adequate due process rights and privileges by members of the chain of command. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with command disputes. There is no evidence in the official records nor provided by the applicant that such assistance was pursued. (2) The applicant contends the discharge should have been for medical reasons. The Board determined that Army Regulation 135-178, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. (3) The applicant contends the Veterans Administration has granted a service connection for medical conditions the applicant suffered while on active duty. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board determined that the discharge is proper and equitable. (4) The applicant contends the VA has granted a service-connected disability for back pain with sciatica, lumbar degenerative disc disease and lumbar spinal stenosis. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant’s time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member’s discharge characterization. In this case, the Board determined that the discharge is proper and equitable. c. The Board determined that the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration, the applicant did not have a condition or experience that could mitigate the offenses of failure to attend multiple unit training assemblies. The applicant did not supply sufficient independent corroborating evidence to support contentions, and 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. (2) The Board voted not to change the applicant’s reason for discharge or accompanying SPD code under the same pretexts, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority 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 AR20190011483 1