1. Applicant's Name: a. Application Date: 25 October 2019 b. Date Received: 31 October 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable conditions. The applicant seeks relief contending, in effect, during Basic Training, the applicant was injured and was given an MRI scan at the Health South Diagnostic in Columbus, GA, 31904 on June 26, 2006, which confirmed a herniated disc in the L5-S I position. The applicant was given papers at the Martin Army Community Hospital regarding a hearing with the M.E.B. The applicant never made it to the meeting. The applicant contends psychological abuse and stress received from superiors regarding the medical condition became unbearable, and the applicant could no longer hold out to be evaluated for a medical discharge. b. Board Type and Decision: In a records review conducted on 19 August 2022, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant serving less than 180 Active Duty service days prior to going AWOL, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to uncharacterized, and changed the separation authority to AR 635-200, paragraph 11-3a, the narrative reason for separation to Entry-Level Performance and Conduct, with a corresponding separation code of JGA. 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: 7 February 2007 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 11 January 2007, the applicant was charged with: Charge I: Violating Article 86, UCMJ, for without authority the applicant was absent from the unit in desertion on or about 18 September 2006, and did not return to military control until on or about 5 January 2007. (2) Legal Consultation Date: 11 January 2007 (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: 19 January 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 28 March 2006 / 5 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 6 months, 23 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: Physical Profile reflects the applicant had the following medical condition: Herniated Disc at L5S1 with Radiculopathy and Retrolisthesis of L5 on S1 Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 18 September 2006, From "AWOL" to "Dropped from Rolls (DFR)," effective 18 October 2006; From "DFR," to "PDY," effective 5 January 2007. Charge Sheet, dated 11 January 2007, reflects the applicant was charged with: violation of the UCMJ, Article 86, for without authority the applicant was absent from the unit in desertion on or about 18 September 2006, and did not return to military control until on or about 5 January 2007. On 19 January 2007, the separation authority ordered the applicant to be reduced in rank to Private (E-1) prior to the execution of the discharge. i. Lost Time / Mode of Return: 109 days: AWOL, (18 September 2006 - 5 January 2007) / Surrendered to Military Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; Medical Evaluation Board Narrative Summary Packet; copies of Medical Documents; copies of Personnel Records. 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 3-7a 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) 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. (6) 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.) (7) 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. (8) Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS). (9) Paragraph 11-3a (2) stipulates the policy applies to Soldiers who are in entry-level status, undergoing IET, and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous AD or IADT or no more than 90 days of Phase II under a split or alternate training option. (See the glossary for precise definition of entry-level status.) (10) Paragraph 11-8, stipulates service will be described as uncharacterized under the provisions of this chapter. 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. 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. 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 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 understood the applicant could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans' benefits. The applicant contends, in effect, the applicant received an injury during basic training. The applicant's AMHRR contains documentation which supports a diagnosis of in-service herniated disc at L5 Si with bilateral radiculopathy and retrolisthesis of L5 on SI (L3P) and Systolic Hypertension (PI). The record shows a memorandum dated 17 August 2006 showing Medical Board Proceedings were initiated for the applicant. The applicant's AMHRR is void of an MEB, however it does have the Medical Evaluation Board Narrative Summary which shows the applicant was examined on 2 August 2006 and the diagnosis was a Herniated Disc at L5 Si with Bilateral Radiculopathy and Retrolisthesis of L5 on SI (L3P) and Systolic Hypertension (PI). The applicant contends psychological abuse and stress by members of the chain of command. There is no evidence in the AMHRR the applicant sought assistance or reported the harassment. The applicant contends a medical evaluation board was under process prior to the time of the separation proceedings and that the applicant never made it to the hearing. The Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an involuntary administrative separation or referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non- disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped, and the board report is filed in the member's medical record. 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 the applicant had no mitigating BH diagnoses. 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 being injured during basic training and that a medical evaluation board was under process prior to the time of the separation proceedings but the applicant became absent and never made it to the hearing because the applicant could no longer tolerate the psychological abuse and stress by memberes of the chain of command. The Board considered this contention, but determined that the Army has many legitimate avenues available to service members requesting assistance with unfair treatment by command, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant going AWOL is not an acceptable response to dealing with unfair treatment by command, thus the applicant's discharge was warranted. Further, the Board determined that the applicant nullified the ability to continue in the MEB process after making the decision to go AWOL. Ultimately, the Board voted to upgrade the discharge based on the appliant's ELS status, and the timeline of the AWOL warranting an UNC characterization. c. The Board determined that the characterization of service was too harsh based on the applicant serving less than 180 Active Duty service days prior to going AWOL, and as a result it is inequitable. However, the applicant may still apply to the Army Board for Correction of Military Records. 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 uncharacterized because the applicant serving less than 180 Active Duty service days prior to going AWOL. Thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Entry-Level Performance and Conduct under the same pretexts, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JGA. (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: Yes b. Change Characterization to: Uncharacterized c. Change Reason / SPD code to: Entry-Level Performance and Conduct/JGA d. Change RE Code to: No Change e. Change Authority to: AR 635-200, paragraph 11-3a 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 AR20200000702 1