1. Applicant's Name: a. Application Date: 17 September 2010 b. Date Received: 19 December 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 conditions) and a change to the reenlistment eligibility (RE) code. The applicant seeks relief but did not submit any issues of equity or propriety to be considered by the Board. In a records review conducted on 3 May 2021, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service to include combat service, prior period of honorable service, and the circumstances surrounding the discharge (OBHI and PTSD symptoms). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. The Board determined the RE code 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: In Lieu of Trial by Court Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 6 November 2009 c. Separation Facts: Yes (1) Date Charges Were Preferred: 19 August 2009 (2) Basis for Separation: The evidence of record contains a DD Form 458, Charge and Sheet which indicates on 19 August 2009, the applicant was charged with intent to avoid hazardous duty, namely, deployment in Afghanistan, quit his unit located at Kandahar Airfield, Afghanistan and did remain in desertion (15 May 2007 to 31 July 2009); and steal U.S. currency, military property, of a value of more than $500, the property of the U.S. Army between (15 May 2007 and 31 July 2007). (3) Recommended Characterization: The applicant's chain of command recommended an Under Other Than Honorable Conditions discharge. (4) Legal Consultation Date: 21 October 2009, the applicant consulted with legal counsel and requested discharge in lieu of trial by court-martial. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 27 October 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 June 2005 / 3 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 68W1P, Health Care Specialist / 5 years, 2 months, 5 days d. Prior Service / Characterizations: RA, 11 June 2002 to 13 June 2005 / HD e. Overseas Service / Combat Service: SWA / Afghanistan, 27 January 2007 to 26 January 2008 f. Awards and Decorations: AAM, AGCM, NDSM, GWOTSM, ASR, OSR, NATO MDL, CIB, CMB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant received several initial counseling statements. i. Lost Time / Mode of Return: Desertion for 811 days, 15 May 2007 to 5 August 2009; apprehended by civilian authorities. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 149 (two pages); DD Form 214; Discharge Orders 306-0250; Chapter 10, Discharge Documents (three pages); Preseparation Counseling Checklist for Active Component Service Members (four pages); VA, Rights to Appeal (two pages). 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) 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. Army policy states although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. 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 he indicated he understood he 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 did not submit any issues of equity or propriety to be considered by the Board. 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. 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) There are several BH conditions listed in AHLTA. As there is an association between these conditions and avoidant behavior, there is a nexus between the applicant's condition and his AWOL. (2) Did the condition exist or experience occur during military service? (YES) There is evidence that the conditions emerged following the applicants first deployment and worsened with the second deployment leading to the separating misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? (PARTIALLY) However, these conditions do not mitigate the offense of stealing money as this behavior is not part of the natural progression of the conditions. (4) Does the condition or experience outweigh the discharge? (YES) With the AWOL mitigated, the remaining offenses of misdemeanor theft is not an UOTH offense. b. The ADRB determined that the applicant's characterization of service was inequitable based on post service diagnosis of medical conditions that mitigate the most serious of the applicant's misconduct. The remaining allegations do not warrant an UOTH discharge. c. The applicant did not submit contentions with the discharge, the board deliberated from available records. d. Rationale for Decision: (1) The board voted to change the applicant's characterization of service to satisfy matters of equitability, due to the mitigating PTSD diagnosis. (2) The board voted not to chain the reason. This chapter was requested. While mitigated, the actions leading to the discharge did occur. (3) The SPD/RE code will not change. The Board determined the RE code was proper and equitable and voted not to change the code given the nature of charges and potential of future service with diagnosed medical conditions. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: 7/21/2021 Presiding Officer, COL, U.S. ARMY Army Discharge Review Board Signed by: COLBERT.ROLANDA.DELRESA.1064869872 Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs