1. Applicant's Name: a. Application Date: 19 December 2019 b. Date Received: 13 January 2020 c. Counsel: 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 or general (under honorable conditions). Counsel for the applicant seeks relief contending, in effect, the applicant entered active duty on 29 December 2004 as an 88M10. Counsel for the applicant states applicant was awarded the Iraq Campaign Medal with Two Campaign Stars after being deployed to Iraq from 10 December 2005 to 10 December 2006. Counsel for the applicant states the applicant and spouse welcomed a baby girl on 4 August 2006 while applicant was deployed. The applicant did redeploy and completed the remainder of the deployment. Counsel for the applicant states the applicant was due to deploy again in the Summer of 2007 but was placed on emergency leave due to medical complications the baby was experiencing. Counsel for the applicant states while on leave, the applicant requested an extension of emergency leave for further testing and medical evaluation of his child, which was denied. On 6 September 2007, the applicant was marked AWOL and was given a field grade Article 15. Counsel for the applicant states on 8 January 2008, the applicant's child was diagnosed with a terminal and uncurable disease and on 12 February 2008, the applicant was given a non-deployable profile which was ignored by the applicant's leadership and was stop-lost on 16 May 2008 and subsequently deployed to Iraq on 9 June 2008. Counsel for the applicant states within three weeks of being in Iraq, the applicants spouse sent several Red Cross messages in an attempt to notify the applicant of their child's near-death condition. The applicant's emergency leave was approved on 13 July 2008 and the child passed away on 16 July 2008, the day the applicant arrived at the hospital. Due to the applicant's mental state after the death of the child, when the emergency leave was up, the applicant did not report back to Fort Hood to return to Iraq and a flag was initiated marking the applicant AWOL. Counsel for the applicant states the applicant turned self in to Military Authorities on 14 April 2009 where the command transmitted an Authorized Release from Theatre to the rear element located at Fort Hood, for legal processing. The applicant began seeking mental health treatment from Military Medical Providers who began processing the applicant for a Medical Separation from service. Counsel for the applicant states on or about 21 August 2009, charging documents were filed against the applicant stating the applicant had deserted the unit with the intent to avoid hazardous duty, specifically service in Iraq, from 10 August 2008 to 14 April 2009 and AWOL from 2 July 2009 to 7 July 2009. Counsel for the applicant states on 19 August 2009, 1st Cavalry Division Rear Detachment Commanding Officer dismissed without prejudice the charges against the applicant and forwarded the case file to the 4th Brigade Combat Team for action as necessary and reassigning the applicant to that unit. The following day the applicant was scheduled for a Medical Separation Physical, set to take place on 16 September 2009 but on 3 September 2009 the applicant was recharged with the violations of the UCMJ and on 11 September 2009 a Special Court-Martial proceeding was approved for a Bad Conduct Discharge. As shown, both by the applicant's military records wherein a Military Medical Doctor diagnosed the applicant with adjustment disorder and started the process of medically separating, and post-military VA diagnosis of PTSD, Depression due to the death of the applicant's infant child, and Traumatic Brain Injury, the charges against the applicant should have been dismissed. Counsel for the applicant states the Veteran's unit compounded the issue by not allowing the Veteran to discharge prior to the second deployment, instead initiated stop-loss and deployed the applicant, even after being placed on a non- deployable profile. Counsel for the applicant states these decisions by the command only compounded the issues the applicant was facing at the time, causing a full-on psychiatric episode after the applicant's child passed. Counsel for the applicant states the applicant was clearly suffering from PTSD from both deployments, which were exacerbated by the untimely death of the infant child and the fact that none of these facts were considered by the command leadership point to a serious issue. Counsel for the applicant states the applicant has become a model citizen since the discharge and should not be saddled with this characterization for the rest of life. Counsel for the applicant respectfully requests the Board to reverse the Other Than Honorable Discharge and grant the relief of providing an Honorable Discharge from the United States Army. b. Board Type and Decision: In a records review conducted on 16 November 2022, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's Major Depressive Disorder and PTSD mitigating the applicant's two incidents of AWOL. 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. 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: 8 October 2009 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 21 July 2009, the applicant was charged with: Charge I: Violating Article 85, UCMJ, for being AWOL. The Specification: The applicant did, on or about 10 August 2008, with intent to avoid hazardous duty, namely: Service in Iraq, quit the unit, to wit: Echo Forward Support Company, 2nd Battalion, 7th Cavalry Regiment, 4th Brigade Combat Team, located at FOB Garry Owen, Iraq, and did remain so absent until on or about 14 April 2009. Charge II: Violating Article 86, UCMJ, for being AWOL. The Specification: The applicant did, on or about 2 July 209, without authority, absent himself from the unit, to wit: Headquarters and Headquarters Company, 4th Brigade Combat Team (Rear)(Provisional), 1st Cavalry Division (Rear)(Provisional), located at or near Fort Hood, TX, and did remain so absent until on or about 7 July 2009. (2) Legal Consultation Date: 23 September 2009 (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: 24 September 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 February 2005 / NIF b. Age at Enlistment / Education / GT Score: 19 / NIF / 92 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 3 years, 10 months, 8 days d. Prior Service / Characterizations: RA, 29 December 2004 - 25 February 2005 / HD e. Overseas Service / Combat Service: SWA / Iraq (10 December 2005 - 10 December 2006) f. Awards and Decorations: ICM-CS, NDSM, GWOTSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two Developmental Counseling Forms, for being absent without leave x 2, desertion and missed movement. Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 10 August 2008, From "AWOL" to "Dropped From Rolls (DFR)," effective 11 August 2008, From "DFR," to "PDY," effective 14 April 2009; From "PDY," to "AWOL," effective 2 July 2009, From "AWOL" to "PDY," effective 7 July 2009 Charge Sheet, dated 21 July 2009, reflects the applicant was charged with: violation of the UCMJ, Article 85, for without authority, absent himself from his unit on or about 8 August 2008 and remained absent until 14 April 2009 violation of the UCMJ, Article 86, for without authority, absent himself from his unit on or about 2 July 2009 and remained absent until 7 July 2009. i. Lost Time / Mode of Return: 317 days CCA, 9 July 2007 - 19 July 2007 / NIF AWOL, 6 September 2007 - 2 November 2007 / NIF AWOL, 10 August 2008 - 13 April 2009 / The applicant reported to military custody AWOL, 2 July 2009 - 6 July 2009 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Memorandum, dated 12 February 2008, shows the applicant was found to have Adjustment-Disorder and was deemed non deployable. Counsel for the applicant submitted medical records dated 24 March 2010, stating the applicant has a past medical history of PTSD, alcohol abuse, depression, and asthma, pointing out that psychiatric symptoms of depression, PTSD and alcohol dependence were present. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; Legal Brief with all enlisted enclosures; self- authored statement; eight third-party letters; medical documents; Memorandum for Secretaries of the Military Departments; DD Form 214. 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 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 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 or general (under honorable conditions). The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The Army Military Human Resource Record (AMHRR) 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 AR 635-200, Chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. Counsel for the applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant sought assistance before committing the misconduct, which led to the separation action under review. Counsel for the applicant contends the discharge should have been for medical reasons. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. Counsel for the applicant contends as shown, both by the applicant's military records wherein a Military Medical Doctor diagnosed the applicant with adjustment disorder and started the process of medically separating, and in post-military VA diagnosis of PTSD, Depression due to the death of the applicant's infant child, and Traumatic Brain Injury, the charges against the applicant should have been dismissed. 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 civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: Chronic PTSD; Major Depressive Disorder (MDD), severe, recurrent. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found the applicant was diagnosed with both PTSD and MDD while on active duty. (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 two mitigating BH conditions, MDD and PTSD. As both conditions are associated with avoidant behaviors, there is a nexus between these conditions and the applicant's two incidents of AWOL. (4) Does the condition or experience outweigh the discharge? Yes. 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/PTSD outweighed the two instances of AWOL due to the connection between the diagnoses and avoidant behaviors. b. Response to Contentions: (1) Counsel for the applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention during proceedings including the severe family matters impacting the applicant's service, but ultimately did not address the contention due to an upgrade being granted based on the applicant's MDD/PTSD fully outweighing the applicant's AWOL instances. (2) Counsel for the applicant contends the discharge should have been for medical reasons. The Board determined that the applicant's requested change to the DD Form 214 does not fall within the purview of the ADRB. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using a DD Form 149 regarding this matter. A DD Form 149 may be obtained from a Veterans' Service Organization. (3) Counsel for the applicant contends as shown, both by the applicant's military records wherein a Military Medical Doctor diagnosed the applicant with adjustment disorder and started the process of medical separation, and in post-military VA diagnosis of PTSD, Depression due to the death of the applicant's infant child, and Traumatic Brain Injury, the charges against the applicant should have been dismissed. The Board considered this contention and voted to change the applicant's characterization of service to Honorable because the applicant's MDD and PTSD, which are associated with avoidant behaviors, mitigated the applicant's two incidents of AWOL. c. The Board determined the discharge is inequitable based on the applicant's Major Depressive Disorder and PTSD mitigating the applicant's two incidents of AWOL. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant has two mitigating BH conditions, MDD and PTSD, which are associated with avoidant behaviors; thus, there is a nexus between these conditions, and the applicant's two incidents of AWOL. 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 RE code will not change, as the mitigating conditions are also service-limiting. 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: No Change 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 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 AR20200002911 1