1. Applicant's Name: a. Application Date: 31 July 2020 b. Date Received: 5 August 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) and a narrative reason change. The applicant seeks relief contending, in effect, at the time of the applicant's discharge, the applicant's spouse was going blind from retinitis pigmentosa (RP). The applicant was suffering from post-traumatic stress disorder (PTSD) from a drill sergeant sexually assaulting the applicant in basic training and the applicant suffered from hearing loss. The applicant informed drill sergeants about some of the applicant's issues but never received any assistance. The applicant went absent without leave (AWOL) for less than 60 days. The applicant has a claim on file with the Department of Veterans Affairs (VA). The applicant needs the review for compensation regarding the applicant's claim. The applicant receives treatment from a private facility and the incident has taken a toll on the applicant's life. b. Board Type and Decision: In a records review conducted on 6 September 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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. Given the amount of misconduct in the applicant's file, the Board determined the RE code was proper and equitable and voted not to change it. 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: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 21 November 2007 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 1 October 2007, the applicant was charged with The Charge: Violating Article 86, UCMJ, The Specification: The applicant was AWOL from 8 June 2007 to 27 September 2007. (2) Legal Consultation Date: 1 October 2007 (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: 1 November 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: OADT / 23 October 2006 / 29 weeks or completion of basic and MOS training b. Age at Enlistment / Education / GT Score: 21 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 10 months / The applicant's DD Form 214 reflects the applicant was on excess leave for 51 days, from 2 October to 21 November 2007. d. Prior Service / Characterizations: ARNG, 20 September 2006 - 22 October 2006 / NA e. Overseas Service / Combat Service: None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Seven Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)," to "Absent Without Leave (AWOL)," effective 17 March 2007; From "AWOL" to "PDY," effective 18 March 2007; From "PDY" to "AWOL," effective 28 April 2007; From "AWOL" to "PDY," effective 11 May 2007; From "PDY" to "AWOL," effective 8 June 2007; From "AWOL" to "Dropped From Rolls (DFR)," effective 9 June 2007; and From "DFR" to "PDY," effective 27 September 2007. Criminal Investigation Division (CID) Report of Investigation - Final, 29 May 2007, reflects an investigation established probable cause to believe the applicant committed the offenses of Wrongful Introduction of Marijuana; Wrongful Use of Cocaine; Wrongful Use of Marijuana; and Making a False Statement when the applicant was seen in possession of controlled substances and the applicant admitted to knowingly using cocaine while on Fort Gordon. The applicant wrongfully possessed marijuana when marijuana was found on the applicant during a search, and the applicant wrongfully introduced marijuana onto Fort Gordon when the applicant admitted to knowingly transporting marijuana in a vehicle onto Fort Gordon. The applicant wrongfully used marijuana when the applicant tested positive during a unit urinalysis. The applicant made a false official statement when the applicant provided a statement which the applicant knew was false. The applicant was interviewed and admitted to knowingly using cocaine and marijuana and providing the CID office with a false statement. Report of Return of Absentee, 16 July 2008, reflecting the applicant surrendered to military authorities on 27 September 2007, from being absent without leave, which began on 8 June 2007. The applicant provided Retina Specialists of Alabama, LLC, Patient Examination, 25 July 2006, reflecting M. B. was examined and the examination revealed a possible diagnosis of retinitis pigmentosa. The individual was sent for further testing. The applicant provided ENT Associates of Alabama, PC, medical report, 2 March 2020, reflecting the applicant was diagnosed with tinnitus, right ear. The applicant provided Retina Specialists of Alabama, LLC, medical document, 3 March 2020, reflecting a patient, M. B., received a primary medical impression of cystoid macular edema oculus sinister (CME OS), and secondary impression of retinitis pigmentosa OU (oculus uterque). i. Lost Time / Mode of Return: 124 days: AWOL, 28 April 2007 - 10 May 2007 / NIF AWOL, 8 June 2007 - 26 September 2007 / Surrendered to Military Authorities j. Behavioral Health Condition(s): (1) Applicant provided: Urgent Care Clinic, medical report, 3 March 2020, reflecting the applicant was diagnosed with major depressive disorder, single episode, unspecified; PTSD, unspecified; and generalized anxiety disorder. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 214; DD Form 293; self-authored statement; Retina Specialist of Alabama, LLC medical report; ENT Associates of Alabama, PC, medical report; Urgent Care Clinic, medical report; and third party statement. 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. (8) 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 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 waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes. RE-4 Applies to: Person separated from last period of service with a nonwaiverable 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 Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The evidence in the applicant's Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court- martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant desires to rejoin the Military Service. Soldiers processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 601-210, the applicant was appropriately assigned an RE code of "4." An RE code of "4" cannot be waived, and the applicant is no longer eligible for reenlistment. The applicant contends PTSD, major depression, and generalized anxiety disorder caused by military sexual trauma and family issues affected behavior, which led to the discharge. The applicant provided several medical documents indicating a diagnosis of PTSD, unspecified; major depressive disorder, single episode, unspecified; and generalized anxiety disorder, and a third-party statement to support the applicant's contention of being sexually assaulted. The applicant provided M. B.'s medical documents, reflecting the individual received a diagnostic impression of CME OS and retinitis pigmentosa OU. The applicant's AMHRR is void of a mental status evaluation. The applicant contends being AWOL for less than 60 days. The applicant's AMHRR reflects court-martial charges were preferred against the applicant for being AWOL for 111 days. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The AMHRR shows the applicant met entrance qualification standards to include age. 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: Major Depressive Disorder (MDD), PTSD, and Generalized Anxiety Disorder (GAD) with MST. (2) Did the condition exist or experience occur during military service? Yes. Military Sexual Trauma. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and avoidance, the PTSD/MST mitigates the AWOL. (4) Does the condition or experience outweigh the discharge? Yes. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the applicant's Major Depressive Disorder (MDD), PTSD, and Generalized Anxiety Disorder (GAD) with MST outweighed the AWOL basis for separation for the aforementioned reason(s). b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's AWOL charges. (2) The applicant desires to rejoin the Military Service. The Board considered this contention. However, given the applicant's medical diagnosis, the Board voted not to change the RE code, as the current code is consistent with the procedural and substantive requirements of the regulation. (3) The applicant contends PTSD, major depression, and generalized anxiety disorder caused by military sexual trauma and family issues affected behavior, which led to the discharge. The Board determined that this contention was valid and voted to upgrade the characterization of service due to PTSD mitigating the applicant's AWOL charges. (4) The applicant contends being AWOL for less than 60 days. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD fully outweighing the applicant's AWOL basis for separation. (5) The applicant contends youth and immaturity affected the applicant's behavior at the time of the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's PTSD fully outweighing the applicant's AWOL basis for separation. a. The Board determined the discharge is inequitable based on the circumstances surrounding the discharge (OBHI and PTSD diagnoses). 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. Given the amount of misconduct in the applicant's file, the Board determined the RE code was proper and equitable and voted not to change it. c. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's PTSD mitigated the applicant's AWOL. 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) Given the applicant's medical diagnosis, the Board voted not to change the RE code, 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: Yes b. Change Characterization to: Honorable c. Change Reason / SPD Code to: Secretarial Authority / JFF d. Change RE Code to: No Change 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 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 AR20200008235 1