1. Applicant’s Name: a. Application Date: 23 March 2020 b. Date Received: 31 March 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 a change in the characterization of service from under other than honorable conditions to a discharge characterization as the board deems appropriate. The applicant also requests a change of the separation authority be amended from AR 135-178, chapter 13 (unsatisfactory participation) to AR 135-178, chapter 6.5 (involuntary separation due to parenthood). The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge the Army Discharge Review Board will consider the applicant for a possible upgrade to honorable. The applicant seeks relief contending, in effect, that he would like an upgrade in his character of service for the purpose of being able to again enlist in the military and regain the life and dreams that he had for his military career and life pre-2010. The applicant contends the changes in the characterization and separation authority are both fair and equitable and are in the best interest of all parties. The applicant contends under the forementioned paragraph “A Soldier may be separated by reason of parenthood if as a result thereof, it is determined under the guidance set forth in chapter 2, section I, the Soldier is unable satisfactorily to perform their duties, or is unavailable for worldwide assignment or deployment if ordered to active duty, AT, FTNGD, or ADT.” However, while awaiting the birth of the applicants first child, the applicant was instead discharge for unsatisfactory participation for missing nine or more UTA’s in a three- month period. b. Board Type and Decision: In a records review conducted on 24 May 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: NIF / AR 135-178 / NIF / NIF / NIF / Under Other Than Honorable Conditions b. Date of Discharge: 26 May 2011 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 16 August 2007 / 8 years b. Age at Enlistment / Education / GT Score: 18 / 11 years / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 92G10, Food Service Specialist / 3 years, 9 months, 11 days d. Prior Service / Characterizations: USAR, 16 August 2007 to 11 February 2008 / NA ADT, 12 February 2008 to 30 June 2008 / UNC (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: NIF i. Lost Time / Mode of Return: NIF j. Behavioral Health Condition(s): NIF (1) Applicant provided: (2) AMHRR Listed: 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; self-authored letter; dependent birth certificate; letter of support from unit legal NCO; memorandum for records reference the unit not having copies of the applicant separation records; IWS-personnel actions report; and separation / reduction orders, dated 19 May 2011. 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 sets forth 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 and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. (1) Paragraph 2-7 prescribes possible characterizations of service include an honorable, general (under honorable conditions), under other than honorable conditions, or uncharacterized if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. (2) Paragraph 2-8, prescribes the characterization is based upon the quality of the Soldier’s service, including the reason for separation, and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. (3) 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. (4) 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. (5) 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. 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 a change in the characterization of service and a change of the separation authority from unsatisfactory participation to involuntary separation due to parenthood. The applicant’s available Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant’s AMHRR is void of the specific facts and circumstances concerning the events which led to the applicant’s discharge from the United States Army Reserve. The applicant’s AMHRR does contain a properly constituted discharge order: Orders 11-139-00004, dated 19 May 2011. The order indicates the applicant was discharged under the provisions of AR 135- 178, with a characterization of service of under other than honorable conditions. The applicant seeks relief contending, in effect, that changes in the characterization and separation authority are both fair and equitable and are in the best interest of all parties. The applicant contends under the forementioned paragraph “A Soldier may be separated by reason of parenthood if as a result thereof, it is determined under the guidance set forth in chapter 2, section I, the Soldier is unable satisfactorily to perform their duties, or is unavailable for worldwide assignment or deployment if ordered to active duty, AT, FTNGD, or ADT.” However, while awaiting the birth of the applicants first child, the applicant was instead discharge for unsatisfactory participation for missing nine or more UTA’s in a three-month period. The applicant’s contentions were noted; however, a determination on whether these contentions have merit cannot be made because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the applicant to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be her responsibility to meet the burden of proof since the discharge packet is not available in the official record. It should also be noted; Army Regulation 135-178, paragraph 6-5, Involuntary Separation Due to Parenthood, prescribes a Soldier may be separated by reason of parenthood if, as a result thereof, it is determined under the guidance set for the in chapter 2, section I, the Solder is unable satisfactorily to perform their duties. Commander will initiate involuntary separation due to parenthood only when a Soldier has been adequately counseled concerning deficiencies in their Family Care Plan and afforded the opportunity to overcome them. Commanders should consider all available counselling and rehabilitative options, including transfers, before initiating separation. 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 the discharge should be changed to Army Regulation 135- 178, paragraph 6-5, Involuntary Separation Due to Parenthood. The Board considered this contention and found insufficient evidence in the applicant’s AMHRR or applicant-evidence to show that applicant sought a separation for hardship. Therefore, the Board determined that there is not mitigation for the applicant’s unsatisfactory participation. (2) The applicant seeks relief contending that changes in the characterization and separation authority are both fair and equitable and are in the best interest of all parties. The Board considered this contention and determined that applicant failed to show that the discharge was inequitable. Therefore, a discharge upgrade is not warranted. 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 did not have a behavioral health condition that would outweigh the applicant’s unsatisfactory participation. The Board also considered the applicant's contentions regarding a change to a Involuntary Separation Due to Parenthood being fair and equitable and found that the totality of the applicant's record does not warrant a discharge upgrade. 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. Therefore, the applicant’s Under Other Than Honorable Conditions discharge was proper and equitable as the applicant’s conduct fell below that level of satisfactory service warranting a General discharge or meritorious service warranted for an upgrade to Honorable discharge. (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 AR20200007931 1