1. Applicant's Name: a. Application Date: 24 October 2019 b. Date Received: 25 October 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 the applicant's record is in error and unjust as the applicant fulfilled all requirements for an honorable discharge. The applicant contends having submitted all paperwork for an IRR which the applicant was originally placed on in 2011 to attend and care for the applicant's disabled mom and siblings. The applicant fulfilled active duty and deployment requirements. Applicant's mother is 100% service connected and permanently disabled. The applicant's mother continues to need in home care and has been assigned an in- home care giver to replace the care the applicant has been providing since 2008. The applicant attached pertinent emails, correspondence, and paperwork regarding the applicant's mother's struggles and disabilities after returning from serving in Coalition Forces in 2005. In a records review conducted on 6 July 2022, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's correspondence with applicant's unit, and the unit's characterization recommendation. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General (Under Honorable Conditions). The Board determined the narrative reason for separation was proper and equitable and voted not to change it. 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 / Chapter 13, AR 135-178 / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 5 July 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 15 May 2012 / The unit commander on 28 March 2012, notification of separation was mailed certified to the applicant recommending a general, under honorable conditions discharge. However, after a review of the applicant's separation packet and performance with the unit, the unit commander recommended a downgrade of the applicant's characterization of service to an under other than honorable conditions discharge. (2) Basis for Separation: 15 May 2012 / The applicant was informed of the following reasons: for having accrued nine or more unexcused absences from scheduled inactive duty training during a one-year period (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: NIF / The DA Form 5138, Separation Action Control Sheet indicated the applicant's acknowledgement of the receipt of Notification of Intent to Initiate Separation Action and the applicants Election of Rights Form was returned to the unit marked undeliverable. (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 5 July 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 December 2007 / 8 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-4 / 35M10, Human Intelligence Collector / 4 years, 6 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NIF g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Several Affidavits of Service by Mail letters and Letters of Instructions reference Unexcused Absence over a period of time. The applicant received two Developmental Counseling Forms for unsatisfactory participation and initiating separation action under the provisions of AR 135-178, for Unsatisfactory Participation. The applicants AMHRR contains sworn Affidavits of Service by Mail from the Unit Administrator attesting to the fact that the entire Separation Packet was mailed to the applicant via Certified Mail. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of DD Form 293; email traffic document; orders for annual training; documents relating to requesting transfer to IRR, dated 15 June 2011; and counseling statements. 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 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 13, 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 13-3, prescribes the service of Soldiers separated under this chapter will be characterized as honorable or under honorable conditions as determined under chapter 2, section III, unless an uncharacterized description of service is warranted under paragraph 2-11. 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's Army Military Human Resource Record (AMHRR) indicates separation action was initiated against the applicant for having accrued nine or more unexcused absences from scheduled inactive duty training during a one-year period. The applicant was discharge with a characterization of service of under other than honorable conditions. The applicant seeks relief contending the applicant's record is in error and unjust as the applicant fulfilled all requirements for an honorable discharge. The applicant contends having submitted all paperwork for an IRR which the applicant was originally placed on in 2011 to attend and care for the applicant's disabled mom and siblings. The applicant fulfilled active duty and deployment requirements. Applicant's mother is 100% service connected and permanently disabled. The applicant's mother continues to need in home care and has been assigned an in- home care giver to replace the care the applicant has been providing since 2008. The applicant attached pertinent emails, correspondence, and paperwork regarding the applicant's mother's struggles and disabilities after returning from serving in Coalition Forces in 2005. The applicant's contentions were noted; however, the record shows the unit commander attempted to contact the applicant on several occasions and mailed the discharge packet to the applicant's last known address via certified mail. Army Regulation 135-178, in pertinent part, stipulates that a Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed in Chapter 4, AR 135-91 and attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier's refusal to comply with such orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification that the Soldier failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and it appears all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 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 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): The applicant seeks relief contending the applicant's record is in error and unjust as the applicant fulfilled all requirements for an honorable discharge. The applicant contends having submitted all paperwork for an IRR which the applicant was originally placed on in 2011 to attend and care for the applicant's disabled mom and siblings. The Board determined partial relief was warranted due to the applicant's correspondence with unit, and the unit's characterization recommendation. However, the Board noted that while the applicant attempted to do the right thing for IRR transfer, the applicant did not complete the process as required and did not notify unit of address change to facilitate correspondence after the applicant moved. c. The Board determined that the characterization of service was inequitable based on the applicant's correspondence with applicant's unit, and the unit's characterization recommendation and decided to partially grant the applicant's request and upgrade the characterization to General (Under Honorable Conditions). However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General (Under Honorable Conditions) based on a review of the correspondence between the applicant and the applicant's unit, as well as the unit's characterization recommendation. Thus, the prior characterization is no longer appropriate. (2) The Board voted not to change the applicant's reason for discharge, as the reason the applicant was discharged was both proper and equitable. (3) As there were no SPD Codes/RE-codes listed on the applicant's discharge paperwork, due to being in the Army Reserves, no upgrade actions are required for these items. 10. BOARD ACTION DIRECTED: a. Issue a New Separation Order: Yes b. Change Characterization to: General (Under Honorable Conditions) c. 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 AR20200000386 1