1. Applicant’s Name: a. Application Date: 10 February 2020 b. Date Received: 14 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 under other than honorable conditions. The applicant requests an upgrade to general (under honorable conditions). The applicant seeks relief contending, in effect, in 2010, while the applicant was actively serving, a noncommissioned officer (NCO), E-5, was hazing, degrading, and discriminating against the applicant. The applicant immediately informed the section chief, E-6 and later the platoon sergeant, E-7 and first sergeant, E-8. The applicant was referred to a psychologist and the psychologist desired to admit the applicant to mental health. The applicant informed the next level in the command regarding the maltreatment. The applicant went as far as informing the base commander about the matter. The applicant also consulted with the judge advocate general (JAG). They did not do anything to assist the applicant. The applicant went absent without leave (AWOL), which was the biggest mistake of the applicant’s life and the applicant regrets going AWOL, but if the applicant did not go AWOL, the applicant would have injured the NCO. The applicant believes the NCO was promoted to staff sergeant, E-6. The NCO’s name is G. and the NCO’s last known location was at 82nd Airborne Division, Fort Bragg. The 1SG at the time was 1SG C. After the applicant went AWOL, the applicant was in trouble with the civilian police and was incarcerated between six and eight months. The applicant was discharged from the service a year after being released from civilian confinement. The applicant’s 1SG at the time was R. b. Board Type and Decision: In a records review conducted on 20 January 2023, 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 14 February 2012 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 28 June 2011, the applicant was charged with The Charge: Violating Article 86, UCMJ, The Specification: Being AWOL from 8 December 2009 to 21 June 2010. (2) Legal Consultation Date: 12 January 2012 (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: 26 January 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 14 September 2004 / NIF b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 84 c. Highest Grade Achieved / MOS / Total Service: E-4 / 13B10, Cannon Crewmember / 5 years, 9 months, 15 days d. Prior Service / Characterizations: NIF e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: AAM-3; NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The Charge Sheet as described in previous paragraph 3c. Six Personnel Action forms, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “Absent Without Leave (AWOL),” effective date 8 December 2009; From “AWOL” to “Dropped From Rolls (DFR),” effective date 7 January 2010; From “DFR” to “Civilian Confinement,” effective date 21 June 2010; From “Confined by Civil Authorities (CCA)” to “PDY,” effective date 25 February 2011; From “PDY” to “AWOL,” effective date 11 July 2011; From “AWOL” to “DFR,” effective date 12 July 2011; and From “DFR” to “PDY,” effective date 10 December 2011. Fayetteville Police Department Warrant for Arrest, dated 7 June 2010, reflects a warrant was issued by civilian court against the applicant for breaking and or entering (7 May 2010). Report of Return of Absentee, dated 21 June 2010, reflects the applicant went AWOL on 8 December 2009 and was apprehended by civilian authorities on 21 June 2010 and returned to military control. Fayetteville Police Department Warrant for Arrest, dated 29 June 2010, reflects a warrant was issued by civilian court against the applicant for breaking and or entering (27 May 2010). Fayetteville Police Department Warrant for Arrest, dated 2 July 2010, reflects a warrant was issued by civilian court against the applicant for breaking and or entering; larceny after break / enter; and possession of stolen goods / property (26 April 2010). State of North Carolina, Conditions of Release and Release Order, dated 2 July 2010, reflects the applicant was to be released upon payment of a secured bond of $5,000 for the offenses of breaking and or entering; larceny after break / enter; and possession of stolen goods / property. State of North Carolina, Judgment and Commitment active punishment felony (structured Sentencing, dated 10 February 2011, reflects the applicant plead guilty to larceny after break / enter and breaking and or entering. The sentence consisted of a prison term of six to eight months, credited with 227 days towards the sentence to prison. Report of Mental Status Evaluation, dated 28 March 2011, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant was mentally responsible for the behavior, could distinguish right from wrong, and possessed sufficient mental capacity. The applicant did not exhibit symptoms of post-traumatic stress disorder or unresolved traumatic brain injury. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant further evaluation. The AXIS I and AXIS II diagnoses were deferred. The mental status evaluation indicates to see medical record for AXIS III diagnosis. Report of Return of Absentee, dated 10 December 2011, reflects the applicant went AWOL on 11 July 2011 and was apprehended by civil authorities on 10 December 2011 and returned to military control. Three Developmental Counseling Forms, for various acts of misconduct and the applicant was provided a plan of action, to include being referred to Division Mental Health for evaluation under the commander’s referral program. i. Lost Time / Mode of Return: 1 year, 7 months, 17 days (596 days): AWOL, 8 December 2009 – 21 June 2010 / Apprehended by Civilian Authorities CCA, 21 June 2010 – 24 February 2011 / Released from Confinement AWOL, 11 July 2011 – 9 December 2011 / Apprehended by Civilian Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with continuation sheet. 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. 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 waivable and nonwaivable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 applies to a person separated from last period of service with a nonwaivable 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 general (under honorable conditions). The applicant’s record of service, the issues and documents submitted with the application were carefully reviewed. The applicant contends hazing, degrading, and discrimination by a member of the command affected behavior and led to the discharge. There is no evidence in the Army Military Human Resource Record (AMHRR) the applicant sought assistance or reported the maltreatment. The applicant contends the applicant was sent to the psychologist after informing the first sergeant of the maltreatment. The AMHRR reflects the applicant was referred to Mental Health after returning from being AWOL. The AMHRR reflects the applicant underwent a mental status evaluation on 28 March 2011, which indicates the applicant was mentally responsible for the behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant further evaluation. The AXIS I and AXIS II diagnoses were deferred. The MSE was considered by the separation authority. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 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/or civilian provider documentation and found that the applicant has the following potentially-mitigating diagnoses/experiences: Adjustment Disorder (DO). (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the diagnosis of Adjustment Disorder was made while the applicant was on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that the applicant does not have a mitigating BH condition. While applicant was diagnosed with Acute Reaction to Stress in 2007, this condition resolved within one month with treatment. The applicant was also diagnosed with Adjustment DO while on active duty. This condition, however, does not mitigate applicant’s misconduct as avoidant behaviors are not associated with Adjustment DO. It does not appear that the applicant’s period of AWOL was related to any underlying BH condition. Finally, a diagnosis of Adjustment DO does not affect one’s ability to distinguish right from wrong and act in accordance with the right. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s adjustment DO outweighed the basis for applicant’s separation – AWOL – for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends hazing, degrading, and discrimination by a member of the command affected behavior and led to the discharge. The Board considered this contention and determined there is insufficienet evidence in the applicant’s file to support the claim that the chain of command was hazing, degrading and discrimitating against the applicant leading to the appliant going AWOL. The Board voted after considering the contention and finding no evidence of the Command acting in an arbitrary or capricious manner. In this case the Board determined the applicant was properly and equitably discharged. (2) The applicant contends being sent to the psychologist after informing the first sergeant of the harassment. The Board considered this contention and found the applicant did attend BH sessions and reported harrassment from a supervisor. The Board determined that the Army has many legitimate avenues available to service members requesting assistance with harassment. The Board concluded that the applicant going AWOL is not an acceptable response to dealing with harassment, thus the applicant was properly and equitably discharged. c. The Board determined that 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’s adjustment DO did not excuse or mitigate the offenses of AWOL. 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 under the same pretexts, 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 AR20200004761 1