1. APPLICANT'S NAME: a. Application Date: 31 December 2019 b. Date Received: 20 February 2020 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, the applicant communicated the abusive martial situation with the TXARNG unit and requested a transfer to Michigan to live with parents. The unit advised the applicant to file a personal protective order and the applicant left for Michigan on 27 June 2014. Interstate Transfer Instructions Memorandum dated 1 August 2014 and signed by the TXARNG unit commander stated if the applicant failed to find a unit by 1 December 2014, the applicant would be declared an unsatisfactory participant and transferred into the IRR. These instructions were not given to the applicant nor were sent to the home of record. There are no returned certified mail receipts in the applicant's iPERMS file. The applicant reported the 63rd Brigade in Belmont, MI and drilled 5 August 2014, 6 August 2014, and 8 August 2014 and was paid. Michigan is the claimed state for tax purposes. The applicant filed a PPO on 29 August 2014. The applicant disclosed the interstate transfer to the readiness NCO at the 63rd Brigade and the NCO contacted the unit in Texas however, Texas still discharged the applicant even though the applicant reported within the 90 days. The applicant wanted to continue to serve in the ARNG and did not want to be discharged. The applicant did the right thing and followed the commander's requirements and drilled within the timeframe allotted. The applicant is a fulltime student at Grand Valley State University and cannot use the CH 1606 GI Bill for the selective reserve because of the discharge. b. Board Type and Decision: In a records review conducted on 8 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service and unit-to-unit correspondence indicating applicant attended drills. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable but no change to the narrative reason due to some unexplained gaps in the timeline. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Texas Military Department, to the Adjutant General, State of Texas, under the provisions of 10 USC § 1553, for final approval. 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 / NGR 600- 200, Paragraph 6-36j / NA / RE-3 / Uncharacterized b. Date of Discharge: 1 December 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: 1 December 2014 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 July 2012 / 8 years (ARNG) b. Age at Enlistment / Education / GT Score: 18 / High School Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 42A10, Human Resources Specialist / 2 years, 4 months, 20 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Memorandum, dated 1 August 2014, reflects the applicant has requested to transfer from the unit to another unit in another state. As of 1 August 2014, the applicant has 90 days in which to locate and join a National Guard unit at the new place of residence. The applicant must stay in contact and keep the unit informed of the progress and new address and phone number. Because the transfer is uncoordinated communication with the unit is very important. Should the applicant fail to find a unit by 1 December 2014, the applicant could be declared an unsatisfactory participant and be subject to transfer to the Individual Ready Reserve (IRR) for the remainder of the enlistment. DA Form 4187, dated 21 September 2014, reflects the applicant was being discharged for Interstate Transfer- Failure to Report, with an uncharacterized character of service. The applicant provided a copy of Memorandum for Record, advisory opinion, dated 7 January 2019, which reflects the applicant was a member in good standing with the Michigan Army National Guard (MIARNG). The MIARNG supports the applicant's application for review of discharge. The MIARNG had attempted to work directly with the Texas Army National Guard (TXARNG) to resolve the issues; however, the TXARNG stands by their determination. The applicant did find a unit in the MIARNG and was attending drill in Michigan prior to the separation from the TX ARNG. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; advisory opinion; Orders 349-065; two emails; two DA Forms 4187; Interstate Transfer Instructions Memorandum; NGB Form 22; ARNG annual statement; DD Form 149; IRR Memo; DA Form 4856; NGB Form 22-5; Form 23 Worksheet; ARNG Retirement Points History statement; 24 LES. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is a fulltime student at Grand Valley State University. 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct 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 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 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 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. e. 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 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-36j, failure to report to the gaining state upon interstate transfer. See chapter 4 of this regulation. (3) Paragraph 4-18 states when a transferred Soldier does not report by the established date, the gaining unit will report this to the gaining State MPMO/G1. The gaining state will notify the losing State IST Coordinator. The losing State IST Coordinator will determine the status of the absent Soldier and inform the gaining state. When neither state can locate the Soldier, the gaining state will discharge from the state only and assign the Soldier to the IRR not later than three months after the enlistment date. Cite NGR 600-200, paragraph 6-36j, in orders and enter RE Code 3 in item 26 of the NGB Form 22. The discharge will be uncharacterized. 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 Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant's AMHRR is void of the complete specific facts and circumstances concerning the events which led to discharge from the Army. The applicant's record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which was not authenticated with the applicant's electronic signature. The applicant's NGB Form 22, indicates the applicant was discharged under the provisions of NGR 600-200, Paragraph 6-36j, by reason of Failure to report to the gaining state upon Interstate transfer, with a characterization of service of uncharacterized. The applicant contends, in effect, being an interstate transfer who reported and drilled with the new command within the 90 days allowed. The applicant provided a copy of Memorandum for Record, advisory opinion, dated 7 January 2019, which reflects the applicant was a member in good standing with the Michigan Army National Guard (MIARNG). The MIARNG supports the applicant's application for review of discharge. The MIARNG had attempted to work directly with the Texas Army National Guard (TXARNG) in an effort to resolve the issues; however, the TXARNG stands by their determination. The applicant did find a unit in the MIARNG and was attending drill in Michigan prior to the separation from the TX ARNG. The applicant contends, in effect, the DA Form 4187 for discharge and failure to report which was actioned against the applicant was not signed by the applicant. The signature does not belong to the applicant. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends going into the IRR due to having a child and not having a viable FCP. The applicant enlisted back in the MIARNG and had to go through extensive waiver processes and miss out on prior service bonus due to the erroneous discharge characterization. The applicant wishes to have the enlistment bonus of $20,000 and restoration of the GI Bill. The applicant's requested changes do not fall within this board's purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends, in effect, being a fulltime college student but cannot use the GI Bill due to the characterization of the discharge. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does 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. The applicant is a fulltime student at Grand Valley State University. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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): (1) The applicant contends being an interstate transfer who reported and drilled with the new command within the 90 days allowed. The Board found evidence to support the contention and the unit-to-unit correspondence held weight during deliberation. Therefore, the Board recommended relief to the characterization, but ultimately did not address the contention due to an upgrade being warranted based on evidence of drilling in MI prior to discharge from TX but with unexplained gaps still existing. (2) The applicant contends the DA Form 4187 for discharge and failure to report which was actioned against the applicant was not signed by the applicant. The Board took this contention into consideration during its proceedings but did not address the contention due to an upgrade being granted. (3) The applicant contends going into the IRR due to having a child and not having a viable family care plan. The applicant enlisted back in the MIARNG and had to go through extensive waiver processes and miss out on prior service bonus due to the erroneous discharge characterization. The Board considered this contention and determined there is evidence of applicant drilling in MI prior to TX discharge and relief to the characterization was warranted. However, there were still gaps in the timeline that the Board was unable to determine the event(s) causing it, so the Board voted that no change to narrative reason was warranted at this time. (4) The applicant contends being a fulltime college student but cannot use the GI Bill due to the characterization of the discharge. The Board considered this contention and 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. c. The Board determined the discharge is inequitable based on the applicant's length of service and unit-to-unit correspondence indicating applicant attended drills. Therefore, the Board voted to recommend relief in the form of an upgrade of the characterization of service to Honorable but no change to the narrative reason due to some unexplained gaps in the timeline. 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 Honorable based on the applicant's length of service and unit-to-unit correspondence indicating applicant attended drills in MI prior to the TX discharge. Thus, the prior characterization is no longer appropriate. This recommendation was forwarded to the TXARNG. (2) The Board voted not to change the applicant's reason for discharge as there were still unexplained gaps in the timeline which the reason(s) explaining were unknown. (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 NGB Form 22a: Yes b. Change Characterization to: Honorable c. Change Reason: No Change d. Change RE Code to: No Change 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 AR20200003420 1