1. Applicant's Name: a. Application Date: 25 July 2019 b. Date Received: 29 August 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is bad conduct. The applicant requests an upgrade to uncharacterized. The applicant seeks relief contending, in effect, that he is requesting a revision of his discharge due to the circumstances of the times and the means and motives which led up to the incident. He is also asking for the board to take into consideration his personal comportments since the incident where he became a US Citizen, has stayed occupied working in the hospitality industry, started college, and had a marvelous civilian record. The applicant believes upgrading his discharge will allow him to enhance his opportunities in contributing to the society where he currently resides. In a records review conducted on 18 May 2022, and by a 4 - 1 vote, the majority of the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (Major Depressive Disorder diagnoses) and post-service accomplishments. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, Chapter 15, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF, and a change to the reentry eligibility (RE) code to 3. 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: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 31 March 2011 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 10, dated 6 July 2010, on 29 March 2010, the applicant was found guilty of the following: Violating Article 86. Plea: Guilty. Finding: Guilty. Specification 1: On or about 29 June 2009, without authority, the applicant absented himself from his unit, to wit: 362d Engineer Company, 11th Engineer Battalion, located at Fort Benning, GA, and remained absent until on or about 6 July 2009; and Specification 2: On or about 9 July 2009, without authority absented himself from his unit, to wit: 362d Engineer Company, 11th Engineer Battalion, located at Fort Benning, GA, and remained absent until on or about 19 February 2010 (2) Adjudged Sentence: On 29 March 2010, the applicant was sentenced to be reduced to the grade of E-1, to be confined for three (3) months, and to be discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: The sentence was approved, and except for the part of the sentence extending to a bad-conduct discharge was executed. The applicant was to be credited with 43 days' confinement credit against the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocated General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the remaining finding of guilty. The applicant was credited with 43 days of confinement against the sentence to confinement. The portion of the sentence extending to confinement having been served. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed. (5) Date Sentence of BCD Ordered Executed: 27 January 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 January 2009 / 3 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / c. Highest Grade Achieved / MOS / Total Service: 12C10, Bridge Crewmember / 1 year, 2 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court Martial Order as described in previous paragraph 3c Several DA Form's 4187 (Personnel Action), which indicate the applicant's duty status change as follows: Present for Duty (PDY) to Absent Without Leave (AWOL), effective 18 June 2009 AWOL to PDY, effective 6 July 2009 PDY to AWOL, effective 9 July 2009 AWOL to Dropped from Rolls (DFR), effective 8 August 2009 PDY to Confined by Military Authorities (CMA), effective 29 March 2010; and CCA to PDY, effective 1 May 2010 i. Lost Time / Mode of Return: Total time lost 365 days: Absent Without Leave 8 days (29 June 2009 to 6 July 2009) and Absent Without Leave / Confinement 357 days (9 July 2009 to 30 June 2010). The DD Form 214 under review makes reference to 317 days of excess leave (19 May 2010 to 31 March 2011). It should be noted the available AMHRR makes reference to a period of time lost as a result of AWOL (18 June 2009 to 6 July 2009) that period of time lost is not accounted for as time lost on the DD Form 214 in block 29 "Dates of Time Lost During This Period" of the DD Form 214 under review. j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and DD Form 214 for the period of service under review. 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), dated 25 September 2019, 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 3-7a states an Honorable discharge is a separation with honor and 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. (3) 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. (4) 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. (5) Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment. (6) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years' active Federal service. Eligibility: Ineligible for enlistment. f. 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 "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial, Other. 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 uncharacterized. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. Evidence in the AMHRR indicates Special Court-Martial actions were initiated against the applicant as a result of the applicant having absented himself from his unit, on or about 29 June 2009 and remaining absent until on or about 6 July 2009 and being absent again on or about 9 July 2009 and remaining absent until on or about 19 February 2010. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. It should be noted Court-Martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The applicant seeks relief contending that he is requesting a revision of his discharge due to the circumstances of the times and the means and motives which led up to the incident. He is also asking for the board to take into consideration his personal comportments since the incident where he became a US Citizen, has stayed occupied working in the hospitality industry, started college, and had a marvelous civilian record. The applicant believes upgrading his discharge will allow him to enhance his opportunities in contributing to the society where he currently resides. The applicant's contentions were noted and the applicant is to be commended on his post- service accomplishment. It should be noted; the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization 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. 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? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation. Applicant was diagnosed with the following potentially mitigating BH condition: Major Depressive Disorder (MDD), recurrent, severe. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the diagnosis of MDD was made while applicant was in the Army. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that the applicant has a mitigating BH condition, MDD, severe, recurrent. As there is an association between MDD and avoidant behaviors, there is a nexus between his diagnosis of MDD and his multiple incidents of going AWOL. (4) Does the condition or experience outweigh the discharge? Yes. The majority of the Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's MDD completely outweighed the applicant absenting himself from his unit (twice) basis for separation. b. Response to Contentions: (1) The applicant seeks relief contending that he is requesting a revision of his discharge due to the circumstances of the times and the means and motives which led up to the incident. The Board determined that this contention was valid and voted to upgrade the characterization of service due to MDD mitigating the applicant's AWOL charges. (2) The applicant asks for the board to consider his personal comportments since the incident where he became a US Citizen, has stayed occupied working in the hospitality industry, started college, and had a marvelous civilian record. The applicant believes upgrading his discharge will allow him to enhance his opportunities in contributing to the society where he currently resides. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must 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. In this case, the majority of the Board determined that the applicant's post service accomplishments were valid and relief is warranted. c. The majority of the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (Major Depressive Disorder diagnoses) and post- service accomplishments. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant had MDD which mitigated the applicant's AWOL misconduct. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Secretarial Authority / JFF d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, Chapter 15 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 MDD - Major Depressive Disorder 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 AR20190013993 1