1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, an upgrade would allow the applicant to receive service-connected disability payments. The applicant's PTSD and shoulder made it difficult to work and without the benefits, there are no means of support. The applicant's family is struggling financially month to month and the applicant desires to attend college, but PTSD makes it difficult to be around crowds and away from home. The applicant's shoulder was injured overseas and it makes it impossible to lift items above the head and pick up any weight. The applicant contends the spouse's illness contributed to the absence without leave, which led to the discharge. In a records review conducted on 7 April 2022, and by a 3-2 vote, the Board determined that the applicant's PTSD partially mitigated but did not outweigh the misconduct because the AWOL was caused by an intent to care for family and not out of military service avoidance, but when also considering applicant's totality of the circumstances to include military combat service, voted to upgrade the discharge to a General Discharge (GD) to achieve a proper and equitable characterization. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to GD, Under Honorable Conditions. 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: 29 October 2009 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 13 August 2009, the applicant was charged with: The Charge: Violating Article 86, UCMJ: The Specification: Being absent from the unit from 5 September 2005 to 4 August 2009. (2) Legal Consultation Date: 13 August 2009 (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 October 2009 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 August 2005 / Not to exceed 300 days b. Age at Enlistment / Education / GT Score: 29 / GED / 115 c. Highest Grade Achieved / MOS / Total Service: E-4 / 21J10, General Construction Equipment Operator / 11 years, 25 days d. Prior Service / Characterizations: ARNG, 17 November 1993 - 7 September 1994 / HD IADT, 8 February 1994 - 6 June 1994 / UNC (Concurrent Service) USARCG, 8 September 1994 - 6 February 1995 / NA ARNG, 7 February 1995 - 1 April 1997 / HD USARCG, 2 April 1997 - 26 July 1998 / NA ARNG, 27 July 1998 - 30 March 1999 / HD USARCG, 31 March 1999 - 4 June 2001 / NA ARNG, 5 June 2001 - 4 June 2002 / HD (Break in Service) ARNG, 29 January 2003 - 31 December 2004 / HD AD, 15 March 2003 - 18 May 2004 / HD (Concurrent Service) (Break in Service) ARNG, 27 April 2005 - 11 August 2005 / NA e. Overseas Service / Combat Service: SWA / Iraq (29 May 2003 - 30 March 2004) f. Awards and Decorations: The applicant's AMHRR reflects award of the GWOTEM, ARCAM, NDSM, AFRM-M, ASR, however, the awards are not reflected on the most recent DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Mississippi Military Department, The Adjutant General's Office, Jackson, MS, Orders 214-002, dated 2 August 2005, reflect the applicant was ordered to active duty to support Operation Enduring Freedom. Three Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective date 5 September 2005; From "Absent Without Leave" to "Dropped From Rolls (DFR)," effective date 6 October 2005; and, From "Dropped From Rolls," to "Present for Duty," effective date 4 August 2009. Report of Return of Absentee, dated 4 August 2009, reflects the applicant went AWOL on 5 September 2005, and was apprehended by civilian authorities and returned to military control on 4 August 2009. Charge Sheet, dated 13 August 2009, as described in previous paragraph 3c. The applicant submitted a statement to support the request for Chapter 10, reflecting, after serving in Iraq, the applicant volunteered to deploy to Afghanistan and prior to deployment, the applicant's spouse had a heat stroke and a conversion disorder relapse. The applicant went AWOL to care for the children and was discharged, but was told by the unit, not to worry about the AWOL. The applicant provided medical documents from 9 September to 10 October 2009, reflecting the applicant's spouse was under the care of a medical doctor and the applicant was needed to care for the family. i. Lost Time / Mode of Return: 3 years, 11 months: (AWOL, 5 September 2005 - 3 August 2009) / Apprehended by Civilian Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; NGB Form 22; Mississippi Department of Employment Security; college transcripts; S.W.'s, applicant's spouse, medical documents; separation orders; TDS Fort Knox, KY, information, Applying for an Upgrade of Discharge from ADRB. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided documents reflecting completed college courses. 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. 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 a 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 of 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. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of 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 PTSD and family issues affected behavior and led to the discharge. The applicant's AMHRR contains no documentation of PTSD diagnosis. The applicant did not submit any evidence to support the contention the discharge resulted from any medical condition. The AMHRR is void of a mental status evaluation. The applicant provided medical documents to show the spouse was being treated by a medical doctor, but there is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends good service, including a combat tour. The applicant contends an upgrade would allow veteran's benefits. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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. The applicant contends attending college after the discharge. 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? 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 is diagnosed with PTSD and Major Depressive Disorder (MDD), which are potentially mitigating for applicant's AWOL that was the basis for separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that the applicant is diagnosed and service-connected by the VA with PTSD, but the applicant was diagnosed with MDD post service, and the weight of the evidence does not support a conclusion that the MDD condition existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. After applying liberal consideration, the Board's Medical Advisor opined that given the nexus between PTSD and avoidance, applicant's PTSD partially mitigated the AWOL that was the basis for applicant's separation because evidence in the record states that applicant went AWOL to care for children and spouse due to his spouse's medical problems, and not significantly out of avoidance of military duty that is regularly fully mitigated by PTSD. (4) Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board's Medical Advisor, a voting member but after applying liberal consideration, found that the applicant's PTSD did not outweigh applicant's AWOL. b. Response to Contention(s): (1) The applicant contends PTSD and family issues affected behavior that led to the discharge. The ADRB is not bound by the U.S. Department of Veterans Affairs (VA) decisions. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, after applying liberal consideration, the Board determined that the applicant's PTSD partially mitigated but did not outweigh the misconduct because the AWOL was caused by an intent to care for family and not out of military service avoidance, but when also considering applicant's totality of the circumstances to include military combat service, voted to upgrade the discharge to GD to achieve a proper and equitable characterization. (2) The applicant contends good service, including a combat tour. The Board considered this contention during proceedings, and determined that an upgrade based on the applicant's PTSD partially mitigating the applicant's AWOL warranted an upgrade to GD when also considering applicant's military combat service. (3) The applicant contends an upgrade would allow veteran's benefits. The Board took this contention into consideration during proceedings, and determined an upgrade to GD was equitable based on the medically partially mitigated PTSD diagnosis held by the applicant in relation to the AWOL. (4) The applicant contends attending college after the discharge. The ADRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge must be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Outstanding post- service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. 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. In this case, the Board considered this contention non-persuasive during its deliberations. c. The Board determined that the characterization of service was inequitable based on the applicant's PTSD partially mitigating the AWOL that was the basis for separation when also considering applicant's military combat service. 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, Under Honorable Conditions because the applicant's PTSD partially mitigated the applicant's AWOL, thereby making the current characterization inequitable when considering the applicant's military combat service. Thus the prior characterization is no longer appropriate. However; the board found a full upgrade to HD not supported by the evidence due to the AWOL length of time and being intentional out of care for family and to avoid a deployment, not out of avoidance related to PTSD. (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: 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 AR20210000159 5