1. Applicant’s Name: a. Application Date: 4 September 2020 b. Date Received: 8 September 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 general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, the applicant had a family emergency which included the life or death attention of an immediate family member, and the unit would not grant Family and Medical Leave Act (FMLA). The applicant returned when the family member was stable, at which point the unit made an example out of the applicant with a court martial. b. Board Type and Decision: In a records review conducted on 25 October 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: Misconduct (Serious Offense) / AR 635-200, Chapter 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 17 May 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 10 May 2007 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant was tried by Summary Court-Martial on 10 April 2007 and convicted for being absent without leave (AWOL) from 16 January 2007 until 12 March 2007. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 11 May 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 15 May 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 July 2006 / 3 years b. Age at Enlistment / Education / GT Score: 19 / High School Graduate / 115 c. Highest Grade Achieved / MOS / Total Service: E-3 / None / 2 years and 6 days (see analyst notes under paragraph 8. d. Prior Service / Characterizations: USAR, 14 March 2005 - 25 July 2006 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) CG Article 15, 8 November 2006, for failing to obey a lawful order by wrongfully wearing civilian clothes while on Phase IV status. The punishment consisted of extra duty and restriction for 45 days: and an oral reprimand. (2) Personnel Action form shows the applicant’s duty status changed from “Present for Duty (PDY),” to “AWOL,” effective 16 January 2007. (3) DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 16 January 2006, shows the applicant was flagged for adverse action (AA), effective 16 January 2006. (4) Personnel Action form shows the applicant’s duty status changed from “AWOL” to “Dropped From Rolls (DFR),” effective 16 February 2007. (5) Deserter/Absentee Wanted by the Armed Forces, 16 February 2007, shows the applicant was declared a deserter on 16 February 2007. (6) Personnel Action form shows the applicant’s duty status changed from “DFR,” to “PDY,” effective 12 March 2007. (7) Developmental Counseling Form, 18 March 2007, shows the applicant’s Phase IV privileges were reduced because of the applicant’s AWOL status. (8) Developmental Counseling Form, 21 March 2007, shows the applicant was notified of a summary court-martial and initiation of a chapter under AR 635-200, chapter 14. (9) Charge Sheet, 4 April 2007, shows the applicant was charged with violation of the Uniformed Code of Military Justice, Article 86, for without authority be absent from the applicant’s unit on or about 16 January 2007 until on or about 12 March 2007. (10) Report of Result of Trial shows the applicant was tried in a Summary Court-Martial on 10 April 2007. The applicant was charged with one specification. The summary of offense, plea, and finding: Violation of Article 86, AWOL from 16 January 2007 to 12 March 2007. The applicant was found guilty which was consistent with the plea. The applicant was sentenced to reduction to E-1; and confinement for 29 days. (11) Record of Trial by Summary Court-Martial, 10 April 2007, shows the applicant was charged with one of violation of Article 86. The sentenced adjudged was reduction to E-1; and confinement for 29 days. The sentence was approved and executed on 13 April 2007. (12) Developmental Counseling Form, 2 May 2007, shows the applicant was recommended for separation under AR 635-200, paragraph 14-12c. (13) Report of Mental Status Evaluation (MSE), 2 May 2007, shows the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in administrative proceedings; could distinguish between right and wrong; and met medical retention requirements. The applicant was mentally responsible for the applicant’s behavior and possessed sufficient mental capacity to participate in administrative and judicial proceedings. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: None (2) AMHRR Listed: MSE as described in previous paragraph 4h. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 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 PTSD, 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) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (5) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (6) Paragraph 14-12c prescribes a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. e. Army Regulation 635-5-1, 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 “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c, misconduct (serious offense). 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 RE codes: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) 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. a. The applicant requests an upgrade to honorable. The applicant’s AMHRR, the issues, and documents submitted with the application were carefully reviewed b. The applicant’s DD Form 214 shows the applicant served 2 years and 6 days. The applicant received a summary court-martial for being AWOL. The applicant was discharged with a general (under honorable conditions) characterization of service on 17 May 2007. c. The applicant contends, in effect, the applicant had a family emergency which included the life or death attention of an immediate family member, and the unit would not grant FMLA. AR 635-200, paragraph 14-12c (1) states an absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. d. Analyst notes block 12 (Record of Service) of the applicant’s DD Form 214 is incorrect as follows: (1) Item 12a (Date Entered Active Duty This Period) shows 22 September 2006, according to the applicant’s DA Form 4 in the applicant’s AMHRR signed on 26 July 2006, the date entered active duty is 26 July 2006. (2) Item 12c (Net Active Service this Period), shows as 2 years and 6 days, after applying the appropriate date entered active duty, it would be 9 months and 22 days (see time calculations under Additional Info within the PDF). (3) AR 635-5, paragraph 2-4h (12)(a) states for date entered active duty this, enter the beginning date of the continuous period of active duty for issuance of this DD form 214, for which a DD form 214 was not previously issued. (4) AR 635-5, paragraph 2-4h (12)(c) states the net active service this period is the amount of service this period, computed by subtracting item 12a (Date Entered Active Duty this Period) from 12b (Separation Date this Period). Lost time under Title 10 United States Code 972 and non-creditable time after expiration time of service, if any, are deducted. (5) This does not fall within this Board’s purview; however, the applicant may apply to the ABCMR, using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization. e. Published Department of Defense guidance indicates that the guidance is not intended to interfere or impede on the Board’s statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant’s petition, available records and/or submitted documents in support of the petition. 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 diagnosis: Adjustment Disorder. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held an in-service diagnosis of Adjustment Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that an Adjustment Disorder is a low-level difficulty coping with stress that does not impair an individual's ability to make conscious choices knowing right from wrong. Additionally, the applicant was assessed by behavioral health shortly before AWOL which determined he was fit for duty, not a safety risk, and symptoms were improving as he was pending discharge. (4) Does the condition or experience outweigh the discharge? No. Despite the Board’s application of liberal consideration, the Board considered the opinion of the Board’s Medical Advisor, a voting member, that the available evidence did not support a conclusion that the applicant’s in-service diagnoses of Adjustment Disorder outweighed the basis for applicant’s separation – Absent Without Authority (AWOL). – for the aforementioned reasons. b. Response to Contention: (1) The applicant requests an upgrade to honorable. The Board considered the totality of the applicant’s service record but 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 because by committing the misconduct of Absent Without Leave (AWOL), the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. (2) The applicant contends, in effect, the applicant had a family emergency which included the life or death attention of an immediate family member, and the unit would not grant FMLA. The board considered this contention during proceedings and determined that the applicant’s family issues do not mitigate the applicant’s AWOL offense as the Army affords Soldiers many avenues to assist Soldiers, including seeking separation for hardship. There is no evidence in the official records nor provided by the applicant that such assistance was pursued, other than the applicant’s statement. Also, the applicant’s available AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. c. The Board determined that the discharge is, at this time, proper and equitable, considering the current evidence of record. The applicant has exhausted their appeal options available with ADRB. However, the applicant may still apply to the Army Board for Correction of Military Records. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant’s contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant’s characterization of service because, despite applying liberal consideration of all the evidence before the board, the applicant’s Adjustment Disorder did not excuse or mitigate the misconduct of Absent Without Leave (AWOL) from 16 January 2007 until 12 March 2007. The 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, 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 / 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 AR20200009850 1