1. Applicant's Name: a. Application Date: 22 May 2020 b. Date Received: 2 June 2022 c. Counsel: 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, through counsel, requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the discharge should be upgraded based on impropriety, because the misconduct of going AWOL, was directly related to, and exacerbated by the PTSD. The applicant was diagnosed with PTSD, insomnia, severe anxiety, and depression by multiple licensed doctors, and was treated for the PTSD prior to the discharge and continued after the discharge. The Kurta and the Wilkie memoranda create a presumption in favor of upgrading the discharge as the diagnosed PTSD provides evidence of behavioral health conditions which contributed to the conduct leading to the discharge. Had the Hagel, Kurta, and Wilkie memoranda been in effect at the time of the discharge, the applicant would not have received the UOTH character of service. The applicant's service warrant leniency because of suffering from PTSD acquired from the deployment in a combat zone, a condition which excuses or mitigates the UOTH discharge. The behavioral health conditions existed in service as evidenced by the treatment records, personal statement, and misconduct. The PTSD outweighs the circumstances leading to the discharge caused by the PTSD. The Army erred in not discharging the applicant through medical channels, because the applicant had an incapacitating mental illness which was the direct or substantial contributing cause of the misconduct, the AWOL. The applicant acknowledges the fault in the misconduct and has committed to receiving treatment for the PTSD. Counsel further details the contentions in an allied legal brief provided with the application. b. Board Type and Decision: In a records review conducted on 19 April 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's Post Traumatic Stress Disorder mitigating the applicant's AWOL offense and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. 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: 21 April 2011 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 7 April 2011, the applicant was charged with: The Charge and the Specification: Violation of Article 86, UCMJ, for being AWOL on 1 July 2007, and remained absent until 5 November 2010. (2) Legal Consultation Date: 11 April 2011 (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: 12 April 2011 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 August 2005 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 22 / High School Graduate / 88 c. Highest Grade Achieved / MOS / Total Service: E-3 / 13D10, Field Artillery Automation / 2 years, 4 months, 7 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (9 December 2005 - 30 December 2006) f. Awards and Decorations: NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Three Developmental Counseling Forms for desertion, AWOL, missing movement, reception and integration into unit, and being considered high risk. Report of Return of Absentee, dated 5 November 2010, reflects the applicant was returned to military authorities on 5 November 2010, following apprehension by civil authorities. Sworn Statement, dated 23 February 2011, rendered by the applicant, reflects reasons for being AWOL in August 2007 through November 2010. Charge sheet as described in previous paragraph 3c. i. Lost Time / Mode of Return: 1,224 days or 3 years, 4 months, 5 days (AWOL 1 July 2007 - 5 November 2010) / The applicant was apprehended by civil authorities. j. Behavioral Health Condition(s): (1) Applicant provided: Exhibits 4 and 5 consisting of medical treatment records reflect treatments for PTSD and other behavioral health issues, referenced in the attorney brief as treatment and diagnoses of PTSD, insomnia, severe anxiety, and depression by multiple licensed doctors. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; (Exhibit 1) DD Form 214; Attorney Brief; (Exhibit 2) Statement in Support of Claim; (Exhibit 3) Statement in Support of Claim for Service Connection for PTSD); (Exhibit 4) Service Treatment Records (STR); and (Exhibit 5) Private Treatment Records. 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 635-40, paragraph 4-3f(1), states enlisted Soldiers who are approved for discharge in lieu of trial by court-martial are ineligible for referral to the MEB and PEB phases of the DES (see AR 635-200). If the Soldier is in the DES process, the applicant's DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial. e. 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.) f. 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. g. 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 honorable and a narrative reason change. 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 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 contends the misconduct of going AWOL was directly related to, and exacerbated by the applicant's diagnoses of PTSD, insomnia, severe anxiety, and depression by multiple licensed doctors. The applicant's AMHRR contains no documentation of PTSD or any behavioral health diagnoses. The applicant provided several medical documents indicating the diagnoses of PTSD, insomnia, severe anxiety, and depression. The applicant contends the Army erred in not discharging the applicant through medical channels, because the applicant had an incapacitating mental illness which was the direct or substantial contributing cause of the misconduct, the AWOL. Army Regulation 635-200, in pertinent part, stipulates commanders will not separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant's documentary evidence reflects filing of claims for VA benefits and an indication for an upgrade of the discharge which would allow veterans' benefits. Eligibility for veterans' benefits does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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: The applicant was diagnosed by the military with Adjustment Disorder and Panic Disorder. The applicant was diagnosed with a variety of conditions while AWOL to include PTSD which is now service connected. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed by the military with Adjustment Disorder and Panic Disorder. The applicant was diagnosed with a variety of conditions while AWOL to include PTSD. (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 AWOL basis for separation is mitigated. (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 PTSD outweighed the AWOL basis for separation for the aforementioned reason. b. Response to Contention(s): (1) The applicant contends the misconduct of going AWOL was directly related to, and exacerbated by the applicant's diagnoses of PTSD, insomnia, severe anxiety, and depression by multiple licensed doctors. The Board considered this contention and determined that that the applicant's PTSD outweighed the AWOL basis for separation for the aforementioned reason. However, the Board did not find that an upgrade to Honorable is warranted because applicant only returned to the Army after being arrested by civilian authorities. Therefore, a General characterization is proper and equitable. (2) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined that applicant received the proper narrative reason and SPD code, "KFS", as specified by AR 635-200, paragraph 10. The Board found that this code is proper in light of applicant returning to military service only after being arrested by civilian authorities. (3) The applicant contends the Army erred in not discharging the applicant through medical channels, because the applicant had an incapacitating mental illness which was the direct or substantial contributing cause of the misconduct, the AWOL. The Board considered this contention, but determined that this request does not fall within the purview of the ADRB. Applicant should submit this contention to the Army Board for Correction of Military Records. (4) The applicant's documentary evidence reflects filing of claims for VA benefits, an indication for an upgrade of the discharge, which would allow veterans' benefits. After liberally considering all the evidence, including the VA determination, the Board found that the applicant did have a mitigating condition and therefore a discharge upgrade is appropriate. c. The Board determined that the characterization of service was inequitable based on the applicant's Post Traumatic Stress Disorder mitigating the applicant's AWOL offense and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General. The Board determined the narrative reason, SPD code, and RE code were proper and equitable and voted not to change them. However, the applicant may request a personal appearance hearing to address further 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 to change the applicant's characterization of service to General because the applicant's PTSD mitigated the applicant's AWOL offense. The Board did not find that an upgrade to Honorable is warranted because applicant only returned to the Army after being arrested by civilian authorities. Therefore, a General characterization is proper and equitable. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code under the same pretexts, and 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: Yes b. Change Characterization to: General, Under Honorable Conditions 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 AR20200008285 1