1. Applicant's Name: a. Application Date: 19 November 2019 b. Date Received: 22 November 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 uncharacterized. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, records indicate an "'Uncharacterized'" discharge in DEERS (Defense Enrollment Eligibility Reporting System) and DMDC (Defense Manpower Data Center), which prevents the applicant from receiving the benefits the applicant is entitled to. The applicant contends being honorably and medically discharged with receipt of disability severance pay, per the attached DD Form 214. (DEERS is a worldwide, computerized database of uniformed services members (sponsors), their family members and others who are eligible for military benefits, including TRICARE. DMDC maintains information on Department of Defense (DoD) entitlements, benefits, and medical readiness for uniformed Service Members, Veterans and their families. Defense Manpower Data Center (DMDC) operates DoD-wide personnel programs.) b. Board Type and Decision: In a records review conducted on 31 August 2022, and by a 5-0 vote, the Board determined that the characterization of service was improper. The record indicates the applicant did not fall under ELS conditions, thus could not have received an UNC discharge due to time in service. Therefore, the characterization not being proper and equitable, the Board granted relief in the form of an upgrade of the applicant's characterization of service to Honorable and upgrade the RE-code to RE-3. This recommendation was forwarded to the NM National Guard for final disposition. The Board determined the narrative reason and accompanying SPD code were proper and equitable and voted not to change them. 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: Medically unfit for retention per AR 40- 501 / Chapter 8, paragraph 8-35l(8), NGR 600-200 / NA / RE-4 / Uncharacterized b. Date of Discharge: 27 March 2009 c. Separation Facts: (1) Date of the Physical Evaluation Board Proceedings: 11 March 2009 (2) Basis for Separation: The applicant was informed of the following reasons: PEB noting disability rating less than 30 percent and Soldier with less than 20 years of service, required separation with disability severance pay. The PEB found Soldier was physically unfit and recommended a rating of 20 percent and recommended the disposition be, separation with severance pay. (3) Recommended Characterization: NA (4) Legal Consultation Date: On 12 May 2009, the applicant concurred and waived a formal hearing of the case. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 31 January 2008 / 8 years b. Age at Enlistment / Education / GT Score: 18 / HS Letter / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 1 year, 1 month, 27 days d. Prior Service / Characterizations: AD, 2 July 2008 - 27 March 2009 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Physical Evaluation Board (PEB) Proceedings, dated 16 March 2009. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; and New Mexico Department of Veterans Services cover letter. 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 Service member discharged from active military service within 15 years of the Service member'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. 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 (previously chapter 8) sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-8a, 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. (3) Paragraph 6-10, Service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status. (4) Paragraph 6-34, prescribes Reentry Eligibility codes are determined at separation. They provide information concerning the Soldier's service in the ARNG, which will be considered upon future enlistment. If a Soldier will receive a discharge under other than honorable conditions, and the reason for discharge is non-waivable for enlistment, the RE code will be RE 4. If the reason for separation is waivable, the RE code will be RE 3. If a Soldier receives a bad conduct or dishonorable discharge, the RE code is RE 4. Table 6-1 defines the differences between RE codes: RE-4 Applies to a person who is: Ineligible for enlistment. (5) Chapter 6-35 (previously chapter 8-35) prescribes for the separation/discharge from State ARNG and/or Reserve of the Army and the reasons, applicability, and codes for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both. These reasons may be used for separation from the State ARNG only. (6) Paragraph 6-35l (previously 8-35l) defers to AR 135-178, Chapter 14 and for the following reason for separation: ... . (8) Medically unfit for retention per AR 40-501, chapter 3. Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36t below. Commanders who do not recommend retention will request the Soldier's discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or are ineligible to reclassify into a new MOS or ineligible for a non-regular retirement. RE 3. LC: MG, if Soldier is not eligible for non-regular retirement. LC: XM if eligible for 15, but fewer than 20 non-regular retirement or LC: CC if eligible for 20 years non-regular retirement. (7) Glossary defines Entry-level status: Upon enlistment, a Soldier qualifies for entry-level status during: (1) The first 180 days of continuous active military service; or (2) The first 180 days of continuous active service after a service break of more than 92 days of active service. A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry-level status upon enlistment in a Reserve component. Entry-level status for such a member of a Reserve component terminates as follows: (1) 180 days after beginning training if the Soldier is ordered to ADT for 1 continuous period of 180 days or more; or (2) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into 2 or more separate periods of active duty. For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings. 8. SUMMARY OF FACT(S): The applicant requests an upgrade of the uncharacterized discharge to honorable. The applicant's available record of service, the issues, and documents submitted with the application were reviewed carefully. The applicant's Army Military Human Resource Record (AMHRR) is void of the specific facts and circumstances concerning the events of the discharge from the Army National Guard of New Mexico and the Reserves of the Army. The applicant's record contains a properly constituted NGB Form 22 (Departments of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service); however, it was not authenticated by the applicant's digital signature. The NGB Form 22 indicates the applicant was discharged under the provisions of NGR 600- 200, then Chapter 8, paragraph 8-35l(8) (currently, Chapter 6, paragraph 6-35l(8)), by reason of being medically unfit for retention per AR 40-501, with a characterization of service of uncharacterized. The proceedings of the PEB (Physical Evaluation Board) revealed the applicant had medical and physical impairment, which prevented reasonable performance of duty required by the grade and military specialty. The PEB, finding the applicant being physically unfit, recommended separation with severance pay of a combined rating of 20 percent. These findings were approved by competent medical authority and the applicant agreed with the findings and proposed action for administrative separation from the Army. The applicant contends the uncharacterized discharge documented in DEERS (Defense Enrollment Eligibility Reporting System) and DMDC (Defense Manpower Data Center) prevents the applicant from receiving the benefits the applicant is entitled to. The applicant contends being honorably and medically discharged with receipt of disability severance pay, per the attached DD Form 214. Army Regulation 635-200 states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized. The evidence of the record reflects in the applicant's case, there was no notification requirement. At the time of discharge, the applicant had eight months and 26 days of continuous active duty service. Based on the time in service, the applicant was not in an ELS status and should not have received an uncharacterized 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 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 contends the uncharacterized discharge documented in DEERS and DMDC prevents the applicant from receiving the benefits the applicant is entitled to, while the DD Form 214 shows being honorably and medically discharged with receipt of disability severance pay. The Board determined that eligibility for Veteran's benefits, to include educational benefits under the Post-9/11 or Montgomery GI Bill, healthcare or VA loans, do not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. However, the Board did find an impropriety in the incongruency between the discharging DD Form 214 and NGB Form 22. Thus, relief was recommended to the New Mexico National Guard to rectify these documents. c. The Board determined that the characterization of service was improper. The record indicates the applicant did not fall under ELS conditions, thus could not have received an UNC discharge due to time in service. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because applicant did not fall under ELS conditions, thus could not have received an UNC discharge due to time in service. Thus, the prior characterization is improper. This recommendation was forwarded to the NGB for approval. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, as the reason the applicant was discharged was both proper and equitable. (3) The Board voted to change the RE code to RE-3. This recommendation was forwarded to the NGB for approval. 10. BOARD ACTION DIRECTED: a. Issue a New NGB Form 22a: Yes b. Change Characterization to: Honorable c. Change Reason: No Change d. Change RE Code to: RE-3 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 AR20200001901 1