1. Applicant's Name: a. Application Date: 28 November 2019 b. Date Received: 2 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 uncharacterized. The applicant requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the discharge from the Army National Guard (ARNG) was improper and the applicant was denied continuation in the Officer Candidate School (OCS) program. The applicant enlisted under the 09S OCS enlistment option. The applicant graduated from basic training in late January 2011 but was not processed until March 2011. The applicant was injured while training and it was determined the applicant was unfit to perform both military and civilian duties for about a month. Six weeks later it was determined the applicant would be fully fit to perform military and civilian duties. The applicant's commander refused to allow the applicant to attend OCS even though he enlisted for the OCS option. Governing regulation guarantees a Soldier's attendance at OCS once completing basic training. The applicant decided to leave the ARNG when it was apparent the option to attend OCS would not be permitted. The applicant's commander refused to allow the applicant to attend a contractually obligated school which was a misuse of authority. The applicant's commander refused to consider requesting a wavier to allow the applicant to continue in the OCS program. After the applicant was injured, the command made very little effort to honor all promises made at the time of enlistment. The applicant contends if the enlistment occurred today, the experience would have been vastly different. The applicant further contends there was honorable service, and the applicant has obtained a Master of Science in Criminal Justice. b. Board Type and Decision: In a records review conducted on 21 September 2022, and by a 5-0 vote, the Board determined the discharge is improper based on the circumstances surrounding the discharge being that the applicant was found medically fit for duty and the applicant's command denied the applicant's continuation in the Officer Candidate School (OCS) program. Therefore, the Board voted to recommend relief with issuance of a new NGB Form 22a, with an upgrade of the characterization of service to Honorable, the separation authority to NGR 600-200, Chapter 14, and the narrative reason for separation to Secretarial Authority, and a change to the reentry eligibility (RE) code to 1. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Virginia Military Department, to the Adjutant General, State of Virginia, 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: Failure to attend IET (phase I or II) within 24 months/ NGR 600-200, Paragraph 6-35d(4) / RE-3 / Uncharacterized b. Date of Discharge: 19 October 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: The applicant failed to meet the 24-month requirement to become military occupational specialty qualified (MOSQ). (3) Recommended Characterization: Honorable (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 October 2012 / Uncharacterized 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 July 2010 / 8 years (ARNG) b. Age at Enlistment / Education / GT Score: 30 / Bachelor's Degree / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / None / 2 years, 3 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, NDSM g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A counseling statement, dated 10 June 2011, reflects the applicant was starting the OCS processing. Evidence shows the applicant sustained a broken ankle on 3 December 2011. The injury was determined to have been in the line of duty and he was placed on a temporary profile until 16 January 2012. On 20 January 2012, the applicant was reevaluated and was found fit to perform military duties. The applicant was placed on light duty for four weeks (no running) and it was determined would be fit for full duty after that point. The applicant was counseled on 2 June 2012, for failure to meet contractual obligation prior to expiration term of service (ETS) date, and the consequences for not attending MOS schooling within 24 months. The Human Resources Counselor noted: * the applicant's ETS was 14 July 2012 * the applicant had missed the enrollment date due to injury * the applicant had recovered from injury, with temporary profile ending on 15 February 2012; however, the next available school date was after the applicant's ETS date of 14 July 2012 * the applicant was not MOS qualified; therefore, current policies would not allow the applicant to extend past the current contractual obligation date * the applicant stated did not desire to attend an enlisted MOS and planned to ETS and consider other options to become an officer The applicant's immediate commander recommended the applicant be discharged with an honorable characterization in accordance with "Army Regulation" [sic, National Guard Regulation] 600-200 (Enlisted Personnel Management) for failure to attend MOS school within the 24-month requirement. The applicant enlisted as an OCS Candidate but sustained an injury that did not allow the applicant to meet the required OCS in process deadlines to attend the course. The applicant was counseled on other opportunities within the VAARNG and attending MOS school but chose not to attend MOS producing school within the 24-month requirement. The applicant's battalion commander recommended the applicant be discharged with an honorable characterization of service. The battalion commander also noted that the applicant had not met the 24-month threshold to become MOS qualified and had been counseled on other opportunities in the VAARNG and attending MOS school but did not elect to attend. Orders 293-019, issued by the VAARNG, dated 19 October 2012, ordered the applicant's discharge from the ARNG and Reserve of the Army, with service uncharacterized, effective 19 October 2021. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Forms 293-2, DA Form 1966, DA Form 638, DA Forms 4856-3, DA Form 2173, DA Forms 7574-1-2, Clinical Health Records-2, Recommendation for Discharge, NGB Form 22, VAARNG OCS Enrollment Guide (pages 2 and 6), College Transcript 6. POST SERVICE ACCOMPLISHMENTS: The applicant obtained a Master of Science in Criminal Justice. 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 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 Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35d (4), Failure to attend IET (phase I or II within 24 months), defers to Army Regulation 135-178, chapter 7. 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 135-178 (Enlisted Administrative Separations), establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the United States Army Reserve. (1) Chapter 7, paragraph 7-2b provides a Soldier may be discharged based on an erroneous enlistment, reenlistment, or extension of enlistment under the guidance set forth in chapter 2, section I, of this regulation. An enlistment, reenlistment, or an extension of enlistment is erroneous when it is discovered that a Soldier's enlistment, reenlistment, or extension is erroneous because he or she failed to meet the qualifications for enlistment, reenlistment, or extension. (2) Paragraph 7-2d states when discharged based on an erroneous enlistment, reenlistment, or extension of enlistment, the service will not be characterized. 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's Army Military Human Resource Record (AMHRR) of service, the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and a narrative reason change. The applicant requests the narrative reason for the separation be changed. The applicant's NGB Form 22 reflects the applicant was separated under the provisions of NGR 600-200, 6- 35d(4), Failure to attend IET (phase I or phase II) within 24 months. The applicant contends the discharge from the ARNG was improper and the applicant was denied continuation in the OCS program. The applicant contends the commander refused to allow the applicant to attend OCS even though the applicant enlisted for the OCS option and governing regulation guarantees a Soldier's attendance at OCS once completing basic training. The applicant contends the commander refused to consider requesting a wavier to allow the applicant to continue in the OCS program after the applicant was injured. The command made very little effort to honor all promises made at the time of enlistment. The applicant contends there was honorable service. The applicant has obtained a Master of Science in Criminal Justice. 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 the applicant had no mitigating BH diagnoses. The applicant provided no documents or testimony of an in-service 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 the discharge from the ARNG was improper and the applicant was denied continuation in the OCS program. The Board determined that this contention was valid and voted to upgrade the discharge due to the applicant's chain of command denying the applicant's continuation in the OCS program even though a preponderance of the evidence indicated the applicant was medically fit for duty. (2) The applicant contends the commander refused to allow the applicant to attend OCS even though the applicant enlisted for the OCS option and governing regulation guarantees a Soldier's attendance at OCS once completing basic training. The Board determined that this contention was valid and voted to upgrade the discharge due to the aforementioned reasons. (3) The applicant contends the commander refused to consider requesting a wavier to allow the applicant to continue in the OCS program after the applicant was injured. The Board addressed this issue by granting an upgrade based on the aforementioned reason. c. The Board determined the discharge is improper based on the circumstances surrounding the discharge being that the applicant was found medically fit for duty and the applicant's command denied the applicant's continuation in the Officer Candidate School (OCS) program. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because that the applicant was found medically fit for duty and the applicant's command denied the applicant's continuation in the Officer Candidate School (OCS) program. Thus, the prior characterization is no longer appropriate. This recommendation was forwarded to the NGB for approval. (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. This recommendation was forwarded to the NGB for approval. (3) The Board voted to change the RE code to RE-1. This recommendation was forwarded to the NGB for approval. 10. BOARD ACTION DIRECTED: a. Issue a New NGB Form 22: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change RE Code to: RE-1 e. Change Authority to: NGB 635-200, Chapter 14 Authenticating Official: 12/6/2022 Presiding Officer, COL, U.S. ARMY Army Discharge Review Board Signed by: NG.RICHARD.1185679876 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