1. Applicant’s Name: a. Application Date: 26 June 2020 b. Date Received: 2 July 2020 c. Counsel: Yes 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant’s Requests and Issues: The current characterization of service for the period under review is general (under honorable conditions). The applicant, through counsel, requests an upgrade to honorable, a narrative reason change, and removal of the bar to reenlistment. The applicant seeks relief contending, in effect, a bar to reenlistment was added to the applicant’s Interactive Personnel Electronic Records Management System (iPERMS), but the applicant never received notice of the action or was provided an opportunity to review the document. The applicant was not allowed the opportunity to respond and the command ignored the requirements on the bar to reenlistment certificate because the applicant was never counseled about the bar to reenlistment. The applicant’s expiration term of service (ETS) was on 16 April 2020 and the applicant left in good standing. After the applicant ETS’d, the unit had filed paperwork reflecting a general discharge and the applicant was involuntarily separated for misconduct. The information is false. The applicant ETS’d once the contract had ended and the applicant was not separated involuntarily. Before ETSing the applicant was pending nonjudicial punishment for some missed drills. The applicant had a valid excuse for the missed drills. The applicant had to be hospitalized during part of the period the applicant missed. The applicant was never provided the opportunity to present evidence and the second reading of the nonjudicial punishment was cancelled by the unit before the applicant ETS’d. After the applicant ETS’d, the applicant discovered the unit filed a bar to reenlistment against the applicant, which was completed by the unit on the same day the applicant ETS’d. The unit ignored the requirements on the form and never counseled the applicant on the bar, never allowed the applicant the opportunity to respond, and never gave the applicant notice of the bar. The unit falsely indicated on the applicant’s separation documents the applicant was involuntarily separated, but the alleged misconduct was not sustained. The applicant was not provided the opportunity to rebut any allegations. The applicant was able to reenlist in the U.S. Army Reserve (USAR), which proves the applicant had no flags in the system and is in good standing with the current unit. The documents which state the applicant was involuntarily separated for misconduct are hindering the applicant’s career progression. b. Board Type and Decision: In a records review conducted on 28 June 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 / NGR 600-200, Chapter 6, and AR 135-178 / NIF / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 16 April 2020 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: 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: 17 April 2014 / 6 years b. Age at Enlistment / Education / GT Score: 24 / 1 Year College / 95 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 6 years d. Prior Service / Characterizations: IADT, 23 June 2014 – 5 September 2014 / NA (Concurrent Service) IADT, 24 March 2015 – 8 May 2015 / HD (Concurrent Service) e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR, ARCOTR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Orders Number 0000376436.00, dated 6 May 2020, reflect the applicant was involuntarily separated, effective 16 April 2020, with a reenlistment eligibility code 3 and separation program designator Misconduct (AWOL). The reason for separation was the applicant’s continuous and willful absence. The applicant’s NGB Form 22, reflects the applicant was separated and assigned to the United States Army Reserve Control Group, Individual Ready Reserve to complete two years statutory obligation. The terminal date of reserve/military service obligation was 16 April 2022. The NGB Form 22 and NGB Form 56a were mailed to the applicant’s last known address, shown in item 19. The NGB Form 22 was not authenticated with the applicant’s signature. Army National Guard Bar to Reenlistment, Immediate Reenlistment or Extension (Certificate), dated 16 April 2020, reflects on 15 April 2020, the bar to reenlistment was signed by the immediate commander, initiating the proceedings against the applicant for being absent without leave from annual training from 19 July through 2 August 2019; the applicant was notified of nonjudicial punishment on 16 March 2020; and will ETS on 16 April 2020. The section for the applicant’s acknowledgment is blank. The bar to reenlistment was approved on 16 April 2020. The applicant provided electronic mail messages from 7 May to 11 May 2020, between the New York Army National Guard (NYARNG) Brigade Judge Advocate and the NYARNG Trial Defense Services defense counsel regarding the separation and the bar to reenlistment. The brigade judge advocate directed the applicant’s defense counsel to contact the Army Board for Correction of Military Records (ABCMR) for correction. Oath of Office – Military Personnel, dated 27 August 2020, reflects the applicant completed the Oath of Office as a Reserve Commissioned Officer in the rank of Second Lieutenant. i. Lost Time / Mode of Return: NIF j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 4; two DD Forms 149; NGB Form 22; ARNG Bar to Reenlistment, Immediate Reenlistment or Extension (Certificate); separation orders; electronic mail documents; New York Trial Defense Service Memorandum; congressional documents. 6. POST SERVICE ACCOMPLISHMENTS: The applicant is employed in law enforcement, as a civilian, and reenlisted in the USAR. 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 135-91 states a member is an unsatisfactory participant when the member fail to attend annual training (AT) or nine or more unexcused absences from scheduled drills accrue during a one-year period and attempts to have the Soldier respond or comply with orders or correspondence have resulted in - the Soldier’s refusal to comply with orders or correspondence; or a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable; or verification the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. The regulation states the Soldier is an unsatisfactory participant when the Soldier Discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities in accordance with the provisions of AR 135-91, paragraph 2-18, and Chapter 3, section IV, of AR 135-178. e. Army Regulation 135-178 prescribes 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 of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) 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 any other characterization would be clearly inappropriate. (2) Paragraph 2-9b, prescribes, if a Soldier’s service has been honest and faithful, it is appropriate to characterize 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. (3) Chapter 3-23 (Section IV), states, if separation proceedings under this chapter have been initiated against a Soldier confined by civil authorities, the case may be processed in the absence of the respondent. (4) Chapter 12 (previously Chapter 13), in affect at the time, provides in pertinent part, individuals can be separated for being an unsatisfactory participant. Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service because: The Soldier is an unsatisfactory participant as prescribed by AR 135-91, chapter 4; Attempts to have the Soldier respond or comply with orders or correspondence. (5) Paragraph 12-3, Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted under the guidelines in chapter 2, or uncharacterized if the Soldier is in entry-level status. f. 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 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 Program. (1) Chapter 6 sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. (2) Paragraph 6-25, prescribes the discharge of Soldiers on active duty, (Title 10, USC) in AGR, IET, ADT, and ADOS status, as well as those ordered to active duty for contingency operations or under mobilization conditions, is governed by AR 635-200. All Outside Continental United States (OCONUS) training, including AT is conducted in Title 10 ADT status. Refer to AR 135-178 when considering enlisted Soldiers not on active duty and those on full-time National Guard duty (FTNGD) under Title 32 USC for discharge from the ARNG and as a Reserve of the Army. (3) Paragraph 6-35j defers to AR 135-178, chapter 12 for unsatisfactory participation. Commanders may recommend retention of Soldiers who have accrued 9 or more unexcused absences within a one-year period. Submit requests with justification for retention to the State MPMO/G1. Include verification the notification requirements of AR 135-91 and paragraph 6-32 have been met. RE 3. 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, a narrative reason change, and removal of the bar to reenlistment. The applicant’s Army Military Human Resources Record (AMHRR), the issues, and documents submitted with the application were carefully reviewed. The applicant’s Army Military Human Resources Record (AMHRR) includes partial facts and circumstances concerning the events which led to the discharge from the New York Army National Guard. The applicant’s AMHRR does contain a properly constituted discharge order: Orders 0000376436.00, dated 6 May 2020. The orders indicate the applicant was discharged under the provisions of NGR 600-200 and AR 135-178, with a characterization of service of general (under honorable conditions). Based on the applicant’s AMHRR, someone in the discharge process failed to enter the reason for separation on the applicant’s NGB Form 22, block 23, “NGR 600-200, Chapter 6, and AR 135-178.” The applicant’s AMHRR reflects the applicant was separated for Misconduct (AWOL) because of continuous/willful absence, which is consistent with NGR 600-200, paragraph 6-35j, and AR 135-178, Chapter 12 (previously Chapter 13), for “Unsatisfactory Participation.” Soldiers discharged because of Unsatisfactory Participation, will be processed under the provisions NGR 600-200, Chapter 6, Paragraph 6-35j, and AR 135-178, Chapter 12. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 6-35j, NGR 600-200, with a General (Under Honorable Conditions) discharge. The narrative reason specified by NGR 600-200, for a discharge under this paragraph is “Unsatisfactory Participation.” Governing regulations stipulate no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends the applicant was not given the opportunity to explain the absences because the second reading of the nonjudicial punishment was cancelled and never rescheduled. The applicant provided documents reflecting the applicant’s nonjudicial punishment hearing was rescheduled because of recent activation for COVID19 and the applicant would be notified of a confirmed date. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. The applicant contends the applicant never received any notice, acknowledged, or was counseled regarding the Bar to Reenlistment, which was approved on the applicant’s ETS date of 16 April 2020. The applicant’s AMHRR reflects the bar to reenlistment was initiated on 15 April 2020; was not acknowledged by the applicant, and was approved on 16 April 2020. The applicant’s AMHRR is void of any counseling forms. The applicant contends the applicant met the expiration term of service, the applicant was not involuntarily separated, and there was no administrative separation board convened against the applicant. NGR 600-200 provides all Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation, or if being considered for separation under other than honorable conditions have the right to an administrative separation board. The applicant’s AMHRR is void of any indication the applicant was entitled to an administrative separation board or a separation packet. The applicant contends good service. The Board will consider the applicant’s service accomplishments and the quality of service according to the DODI 1332.28. The applicant requests removal of the Bar to Reenlistment. The applicant’s request does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. The applicant contends an upgrade of the discharge will allow the applicant’s career to progress. The Board does not grant relief to gain employment or enhance employment opportunities. The applicant contends being employed in law enforcement, as a civilian, and reenlisting in the USAR. 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, a voting member, 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, through counsel, requests an upgrade to honorable, a narrative reason change, and removal of the bar to reenlistment. The Board considered this contention and concurred with the opinion of the Board’s Medical Advisor, a voting member, and determine that despite applying liberal consideration of all the evidence before the found no mitigating BH diagnoses on the applicant. The applicant was properly and equitably discharged because the applicant’s lengthy Absent Without Authority (AWOL) was serious enough misconduct that the Board determined the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military. Therefore, no change is warranted. In addition, the applicant’s request of removal of bar to reenlist does not fall within this board’s purview. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. (2) The applicant contends the applicant was not given the opportunity to explain the absences because the second reading of the nonjudicial punishment was cancelled and never rescheduled. The Board considered this contention after a review of the applicant AMHRR and found that the applicant provided documents reflecting the applicant’s nonjudicial punishment hearing was rescheduled because of recent activation for COVID19 and the applicant would be notified of a confirmed date. The applicant’s AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. (3) The applicant contends the applicant never received any notice, acknowledged, or was counseled regarding the Bar to Reenlistment, which was approved on the applicant’s ETS date of 16 April 2020. The Board considered this contention and found that the applicant’s AMHRR reflects the bar to reenlistment was initiated on 15 April 2020; was not acknowledged by the applicant and was approved on 16 April 2020 and the applicant’s AMHRR is void of counseling forms. (4) The applicant contends the applicant met the expiration term of service, the applicant was not involuntarily separated, and there was no administrative separation board convened against the applicant. The Board considered this contention upon a review of the applicant AMHRR and found that the applicant was not involuntarily separated, and there was no administrative separation board convened against the applicant. NGR 600-200 provides all Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation, or if being considered for separation under other than honorable conditions have the right to an administrative separation board. Also, the applicant’s AMHRR is void of any indication the applicant was entitled to an administrative separation board or a separation packet. (5) The applicant contends good service. The Board determined the applicant’s discharge was appropriate because the quality of the applicant’s service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army and was prejudicial to good order and discipline. (6) The applicant contends an upgrade of the discharge will allow the applicant’s career to progress. The Board considered this contention during proceedings but does not grant relief to gain employment or enhance employment opportunities. (7) The applicant contends being employed in law enforcement, as a civilian, and reenlisting in the USAR. The Board considered this contention during proceedings and determine that 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. c. The Board determined that the discharge is, at this time, proper and equitable, considering 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 contentions 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, there were no mitigating factors for the Board to consider. Since the applicant was discharged for the misconduct of Absent Without Leave (AWOL) and lack of information in the file for the missing annual training the applicant failed to meet the burden of proof. Therefore, the applicant’s discharge was consistent with the procedural and substantive requirements of the regulation, within the discretion of the separation authority, and the applicant was provided full administrative due process. (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 AR20200009666 1