1. Applicant's Name: a. Application Date: 21 January 2020 b. Date Received: 25 February 2020 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general, under honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, his discharge is unfair because he was assaulted and he is suffering from that assault. In a telephonic personal appearance hearing conducted on 2 August 2021, and by a 3-2 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (PTSD, MST) and homelessness. 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, and a change to the reentry eligibility (RE) code to 1. Please see Section 10 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: Misconduct (AWOL) / AR 635-200 / Chapter 14-12c (1) / JKD / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 27 May 2008 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 May 2008 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant went AWOL on 4 September 2007 and returned on 10 September 2007; the applicant went AWOL again on 15 October 2007 and came back on 12 November 2007; the applicant went AWOL for a third time on 14 November 2007, until apprehended on 10 April 2008. (3) Recommended Characterization: General, under honorable conditions (4) Legal Consultation Date: 20 May 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 May 2008 / General, under honorable conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 August 2007 / 3 years, 2 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 94 c. Highest Grade Achieved / MOS / Total Service: E-2 / 42A, Human Resources Specialist / 3 months d. Prior Service / Characterizations: NIF e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: DD Form 616 (Report of Return of Absentee), dated 13 April2008, reflects the applicant was apprehended by civil authorities on 13 April 2008 and returned to military control. i. Lost Time / Mode of Return: AWOL x3 for a total of 187 days 4 September 2007 - 9 September 2007 / Applicant returned 15 October 2007 - 11 November 2007 / Applicant returned 14 November 2007- 17 April 2008 / Applicant apprehended and returned to military control j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provides a VA Rating Decision, dated 15 June 2018, which reflects the applicant was granted an evaluation of 70- percent service connected disability rating for PTSD and major depressive disorder, single episode, severe. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, Department of Veteran Affairs Rating Decision, dated 15 June 2018, Report of Medical Examination, Medical Records-11 pages. 6. POST SERVICE ACCOMPLISHMENTS: Non 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 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) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (6) Paragraph 14-12c(1) allows for an absentee returned to military control from a status of absent without leave or desertion to be separated for commission of a serious offense. 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 AMHRR record of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant contends his discharge is unfair because he was assaulted and he is suffering from that assault. A review of the medical records submitted by the applicant reveals that the applicant made a claim of being sexually assaulted while serving on active duty. There is no indication the in the available record that the applicant made a report of being sexually assaulted prior to his separation from active duty. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): N/A b. The applicant presented the following additional contention(s): Applicant and counsel provided oral arguments in support of the contentions they provided in their written submissions and in support of their documentary evidence. c. Counsel / Witness(es) / Observer(s): 10. 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 DoD and VA medical records. Applicant has several potentially mitigating BH conditions/experiences: Episodic Mood Disorders (in-service diagnosis); PTSD due to MST and Major Depressive Disorder, severe (post-service VA diagnoses; 100% service connected for PTSD). (2) Did the condition exist or experience occur during military service? Yes. Applicant's BH conditions were diagnosed both in-service and post-service: Episodic Mood Disorders (in- service diagnosis); PTSD due to MST and Major Depressive Disorder, severe (post-service VA diagnoses; 100% service connected for PTSD). (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. As there is an association between PTSD/MST and avoidant behaviors, there is a nexus between his PTSD/MST diagnosis and his multiple incidents of being 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, that PTSD/MST are often associated with avoidance behaviors. As a result, the ADRB applied liberal consideration and found that the BH conditions listed outweighed the AWOL basis for separation. b. The applicant contends his discharge is unfair because he was assaulted and he is suffering from that assault. A review of the medical records submitted by the applicant reveals that the applicant made a claim of being sexually assaulted while serving on active duty. Although there were at least 2 AWOL instances prior to the MST due to not receiving pay, the Board granted relief based on the mitigation of MST. c. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (PTSD, MST) and homelessness. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because MST mitigated the AWOL instances. Thus 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 Board voted to change the RE code to RE-1 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: RE-1 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 NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry 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 AR20200004900 4