1. Applicant’s Name: a. Application Date: 4 December 2019 b. Date Received: 17 December 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. The applicant seeks relief contending, in effect, that if he had done some research at the time of discharge about commuting to his unit of assignment, he would not be writing a statement for upgrade of his discharge at this time. b. Board Type and Decision: In a records review conducted on 21 October 2022, and by a 5 - 0 vote, the Board denied the request upon finding the separation was both proper and equitable. 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 / AR 135- 178 / Chapter 13 / NA / NA / Under Other Than Honorable Conditions b. Date of Discharge: 31 July 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: 25 April 2012 (2) Basis for Separation: The applicant was informed of the following reasons: for being an unsatisfactory participant as prescribed by Chapter 4 AR 135-91. The applicant failed to attend battle assemblies or annual training on the following dates: 19 November 2011, 20 November 2011, 10 March 2012, 21 April 2012, and 22 April 2012. The unit attempted to get the applicant to respond or comply with orders or correspondence, the attempts resulted in his verbal or written refusal to comply with the orders or correspondence which merit his separation in accordance with AR 135-178, Chapter 13. The notification of separation proceedings dated 25 April 2012 was sent via certified mail to the most recent address provided by the applicant to the unit under the Administrative Board Procedure, IAW paragraphs 13-4 and 3-10 of AR 135-178, Enlisted Administrative Separation, 13 March 2007/RAR 13 September 2011, on 27 April 2012. On or about 25 May 2012, the notification was returned as unclaimed. The applicant failed to respond to the notification. Failure to respond serves to waive all right the applicant had in this matter IAW AR 135-178, paragraph 3-13 (b). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: The applicant failed to respond to the notification of separation, thereby waiving his right to counsel (5) Administrative Separation Board: The applicant failed to respond to the notification of separation, thereby waiving his right to an administrative separation board. (6) Separation Decision Date / Characterization: 22 July 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 April 2009 / 8 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / NIF / 3 years, 6 months, 12 days d. Prior Service / Characterizations: RA, 7 July 2008 to 23 September 2008 / UNC e. Overseas Service / Combat Service: NIF f. Awards and Decorations: NIF g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Letters of Instruction for Unexcused Absences dated 22 November 2011 for (1) 19 November 2011 and 20 November 2011 and (2) 20 November 2011; 27 March 2012 for (1) 10 March 2012 and (2) 10 March 2012; and 25 April 2012 for (1) 31 April 2012, (2) 21 April 2012, (1) 22 April 2012, and (2) 22 April 2012). Memorandum for Commander, dated 22 July 2012 from the Deputy Staff Judge Advocate, reference to the applicant’s Involuntary Separation IAW AR 135-178 Chapter 13, Unsatisfactory Participation. Several negative counseling statements reference failing to attend Battle Assemblies with a valid excuse. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored statement; statement of support; DD Form 214 for a prior period of active-duty service; partial separation packet documents; and separation order. 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 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 that 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 that 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 circumstance. (4) Chapter 3-23 (Section IV), states, if separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent. (5) Chapter 13 provides in pertinent part, that individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135–91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (6) Paragraph 13-3 prescribes the service of Soldiers separated under this chapter will be characterized as honorable or under honorable conditions as determined under chapter 2, section III, unless an uncharacterized description of service is warranted under paragraph 2–11. 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 AMHRR of service, the issues and documents submitted with the application were carefully reviewed. The evidence of record indicates separation action was initiated against the applicant for being an unsatisfactory participant as prescribed by Chapter 4 AR 135-91. The applicant failed to attend battle assemblies or annual training on the following dates: 19 November 2011, 20 November 2011, 10 March 2012, 21 April 2012, and 22 April 2012. The unit attempted to get the applicant to respond or comply with orders or correspondence, the attempts resulted in his verbal or written refusal to comply with the orders or correspondence which merit his separation in accordance with AR 135-178, Chapter 13. On 22 July 2012, the separation authority having reviewed the administrative action and considering the recommendations of the chain of command and his staff, it was his conclusion, the applicant received nine or more unexcused absences from scheduled unit training assemblies within a twelve (12) month period. In accordance with AR 135-178, he ordered that the applicant be separation with a characterization of service of under other than honorable conditions and be reduced to E-1. The applicant seeks relief contending that if he had done some research at the time of discharge about commuting to his unit of assignment, he would not be writing a statement for upgrade of his discharge at this time. 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, a voting member, 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 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 seeks relief contending that if he had done some research at the time of discharge about commuting to his unit of assignment, he would not be writing a statement for upgrade of his discharge at this time. The Board considered this contention and determined that the Army has many legitimate avenues available to assist service members with procedural and substantive requirements of the regulation for discharges. Ultimately, the Board decided that the assertion of minimal knowledge of reporting requirements and commuting procedures did not outweigh the basis of separation. In this case, the Board determined the discharge was proper and equitable. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the 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 not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the Board, the applicant had no mitigating factors for the Board to consider. 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. (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 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: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: 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 AR20200003454 1