1. Applicant's Name: a. Application Date: 25 January 2020 b. Date Received: 29 January 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 honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, after being diagnosed with HIV, the applicant was depressed and felt alone. The applicant was no longer allowed to be in the unit or continue in the ROTC program. The applicant spoke with a therapist, but it did not help with the applicant's issues. The applicant reached out to the unit but did not receive any help. The applicant's health was declining, and the applicant lost a job and was evicted. The applicant asked to be transferred but the request was denied. The applicant also requested to be discharged, but that request was also denied. The applicant had no transportation to get to drill and there was no form of communication. When the applicant finally contacted the unit, the discharge process had already started. b. Board Type and Decision: In a records review conducted on 3 February 2023, and by a 5 -0 vote, the Board determined the discharge is inequitable based on the applicant's circumstances surrounding the discharge (partial medical mitigation). 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, paragraph 6- 8a, the narrative reason for separation to Misconduct (Minor Infractions), and the re-entry code to 3. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Texas Military Department, to the Adjutant General, State of Texas, 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: Unsatisfactory Participant / NGR 600- 200, Paragraph 6-35j / NA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 7 November 2017 c. Separation Facts: (1) Date of Notification of Intent to Separate: An Affidavit of Service by Mail, dated 13 January 2017, reflects the Administrative Personnel Noncommissioned Officer mailed the notification concerning separation to the applicant on 13 January 2017. (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was an unsatisfactory participant. (3) Recommended Characterization: Under Other Than Honorable Conditions. (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NIF (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 January 2016 / Applicant extended enlistment for 2 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 100 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 8 years, 8 month, 14 days d. Prior Service / Characterizations: ARNG, 25 February 2009 - 20 January 2016 RA, 22 June 2010 - 29 October 2010 / HD (IADT) (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR, AAM, ARCAM, Arkansas Service Ribbon g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Orders 311-845, dated 7 November 2017, reflects the applicant was reduced in rank from specialist/E-4 to private/E-1 effective 4 November 2017, due to misconduct. Letter of Instructions - Unexcused Absence, dated 17 May 2016, reflects the applicant was absent from a scheduled unit training assembly (UTA) or a multiple unit training assembly (MUTA) for the following period 14-15 May 2016. Letter of Instructions - Unexcused Absence, dated 18 July 2016, reflects the applicant was absent from a scheduled UTA or a MUTA for the following period 9-10 July 2016. Letter of Instructions - Unexcused Absence, dated 8 August 2016, reflects the applicant was absent from a scheduled UTA or a MUTA for the following period 7-8 August 2016 Letter of Instructions - Unexcused Absence, dated 19 September 2016, reflects the applicant was absent from a scheduled UTA or a MUTA for the following period 15-16 October 2016. Letter of Instructions - Unexcused Absence, dated 7 November 2016, reflects the applicant was absent from a scheduled UTA or a MUTA for the following period 5-6 November 2016. Certified Mail Receipts reflects the Letters of Instruction were sent by certified mail to the applicant's last known address. i. Lost Time / Mode of Return: NIF j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 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. National 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 Reclassification; Personnel Management; Assignment and Transfer, including interstate transfer; Special Duty Assignment Pay; Enlisted Separations; and Command Sergeant Major Program. Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. Paragraph 6-35j defers to AR 135- 178, chapter 13, Unsatisfactory Participation. e. Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. (1) Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory participation. (2) Paragraph 13-1a (1), prescribes a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant. (3) Paragraph 13-3 states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. 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), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable or general (under honorable conditions). The applicant's available AMHRR and the issues and documents submitted with the application were reviewed. The applicant's NGB Form 22, reflects the applicant was discharged from the ARNG on 7 November 2017, under the provisions of NGR 600-200, Paragraph 6-35j, due to Unsatisfactory Participation with an under other than honorable conditions characterization of service. The applicant contends after being diagnosed with HIV, the applicant was depressed and felt alone. The applicant was no longer allowed to be in the unit or continue in the ROTC program. There is no available evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant reached out to the unit but did not receive any help. The applicant asked to be transferred but the request was denied. The applicant also requested to be discharged, but that request was also denied. The applicant had no transportation to get to drill and there was no form of communication. When the applicant finally contacted the unit, the discharge process had already started. The applicant's AMHRR is void of a request from the applicant to be transferred or discharged. 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 did not find a potentially-mitigating diagnoses/experiences. However, the applicant asserts depression, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist, or experience occur during military service? Yes. The applicant asserts depression in-service and during discharge. (3) Does the condition or experience excuse or mitigate the discharge? Partially. The Board's Medical Advisor applied liberal consideration and opined that there are no known behavioral health conditions or liberal consideration experiences for consideration. However, the applicant asserts depression secondary to a health condition impacted performance. The applicant did serve for over 6 years before difficulties arose which could support the applicant's report of health issues and secondary emotional distress interfering with performance. (4) Does the condition or experience outweigh the discharge? Yes. Based on liberally considering all the evidence before the Board, the ADRB determined that the condition or experience outweighed the basis of separation. b. Response to Contention(s): (1) The applicant contends after being diagnosed with HIV, the applicant was depressed and felt alone. The applicant was no longer allowed to be in the unit or continue in the ROTC program. 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 partial medical mitigation for asserted depression outweighing the applicant's unsatisfactory participation basis of separation. Additionally, the applicant did serve for over 6 years before difficulties arose which could support the applicant's report of health issues and secondary emotional distress interfering with performance. (2) The applicant reached out to the unit but did not receive any help. The applicant asked to be transferred but the request was denied. 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 partial medical mitigation for asserted depression outweighing the applicant's unsatisfactory participation basis of separation. c. The Board determined the discharge is inequitable based on the applicant's circumstances surrounding the discharge (partial medical mitigation). 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, paragraph 6- 8a, the narrative reason for separation to Misconduct (Minor Infractions), and the re-entry code to 3. The Board's recommendation was forwarded to the Chief, National Guard Bureau, Texas Military Department, to the Adjutant General, State of Texas, under the provisions of 10 USC § 1553, for final approval. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's partial medical mitigation for asserted depression outweighing the applicant's unsatisfactory participation basis of separation. 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 Misconduct (Minor Infractions) under the same pretexts, thus the reason for discharge is no longer appropriate. The change reason is changed to new reason for discharge as Misconduct (Minor Infractions). (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 NGB Form 22a: Yes b. Change Characterization to: Honorable c. Change Reason: Misconduct (Minor Infractions) d. Change RE Code to: RE-3 e. Change Authority to: NGR 600-200, Paragraph 6-8a 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 AR20200008692 1